200 P. 595 | Cal. | 1921
The present creditor's suit for conversion is the outcome of a succession of events which began when the Travis Glass Company, a corporation having its principal place of business in the city of Clarksburg, West Virginia, sold a carload of milk bottles to the Eureka Dairy Company, a partnership of Los Angeles, California. Upon the arrival of the bottles in Los Angeles, in the month of April, 1918, R.E. Ibbetson, acting as agent for the Eureka Dairy Company, *726 directed that they be delivered to the Pacific Commercial Warehouse, which direction was complied with by the railroad company. Shortly thereafter the Eureka Dairy Company discontinued business. On June 5, 1918, Ibbetson sold the bottles for five hundred dollars, plus freight amounting to $357.57, which sum he has ever since retained in his possession. The Travis Glass Company, having received nothing in payment for the bottles, commenced an action for the purchase price against the firm, Eureka Dairy Company, and the individual members thereof, and, on June 28, 1919, recovered judgment, in the superior court of Los Angeles County, in the sum of $1,108.05, with interest from December 12, 1918, at seven per cent per annum, and costs. An execution on this judgment was issued to the sheriff of Los Angeles County and a copy of the execution was delivered by the sheriff to R.E. Ibbetson as garnishee, but the execution was returned and remains wholly unsatisfied. Subsequently, in proceedings supplementary to execution under section 717 et seq. of the Code of Civil Procedure, Ibbetson was examined in court concerning any debts or property owing by him to the Eureka Dairy Company or the members of said company, and in particular concerning the sale of the milk bottles on June 5, 1918. It appearing from this examination that Ibbetson claimed an interest in the bottles and the proceeds thereof adverse to the Dairy Company, the Travis Glass Company instituted the present action against him, wherein the trial court rendered judgment in favor of plaintiff, from which defendant appeals.
[1] The action is brought pursuant to section 720 of the Code of Civil Procedure, which authorizes an action by a judgment creditor against the judgment debtor's debtor, or, more exactly, which permits a judgment creditor whose judgment remains unsatisfied to maintain an action against a person alleged to have property of the judgment debtor, or, to be indebted to him, when such person denies the debt or claims an interest in the property adverse to the judgment debtor. In the present action plaintiff seeks to reach an alleged claim of the Dairy Company for conversion by the defendant Ibbetson in selling the bottles and failing to account for the proceeds. Counsel for defendant contends that the findings of the trial court fail to support the judgment in favor of plaintiff, for the reason that they reveal that, at *727
the time of the claimed conversion, title to and possession of the property in question were in a person other than plaintiff, to wit, the Eureka Dairy Company. Stated otherwise, defendant's contention is to the effect that the statute providing for the recovery by a judgment creditor of property or debts due his judgment debtor does not extend to him the right to maintain a suit for conversion of property belonging to the said debtor. (Raymond v. Blancgrass,
[2] The point is also made in defendant's behalf that two witnesses, the defendant and a stenographer in his office, testified without contradiction that the Eureka Dairy Company delivered the bottles to defendant Ibbetson, requesting him to sell the same and apply the proceeds on a debt then owing from the Dairy Company to said Ibbetson. Upon the authority ofRauer v. Rynd,
[3] As a second and separate defense, defendant set forth that, at the time of the alleged conversion, the Eureka Dairy Company was indebted to defendant in a sum in excess of the price obtained for the bottles and that this indebtedness remains wholly unpaid. The trial court found that it was unnecessary to make specific findings as to the existence or nonexistence of this indebtedness, for the reason that it did not constitute a defense to plaintiff's action for conversion. Defendant assigns this as error, claiming that, *729
while the indebtedness might not be the basis of a counterclaim (Code Civ. Proc., sec. 438), it would, nevertheless, constitute a valid defense to plaintiff's suit for conversion. It is true that, in a judgment creditor's suit the defendant may plead any defense which he may have against the judgment debtor (Nordstrom v. Corona City Water Co.,
[4] Res adjudicata is another defense advanced by defendant which cannot be sustained. On July 10, 1918, shortly after the sale of the bottles by defendant and prior to the recovery of plaintiff's judgment against the Eureka Dairy Company, plaintiff brought a suit directly against defendant Ibbetson and others for the conversion of the bottles. Judgment was rendered in favor of defendants and against plaintiff. It is claimed that the judgment in that action is a bar to the present suit. It is a familiar rule that identity of issues and of parties is indispensable to a valid plea of res adjudicata. In this connection, identity of parties means not only that they must be identical in person, but that the capacity in which they appear must be the same. (Code Civ. Proc., sec. 1908, subd. 2; 23: Cyc. 1237.) Consequently, although the subject matter of the suits is the same, the present suit is not barred by the former one, for *730 the plaintiff is suing in a different capacity in the second action. In the first action for the conversion of the bottles, plaintiff relied entirely upon its own interest therein, but it was determined that the title and possession had passed to the Dairy Company before the sale by defendant. Thereafter plaintiff recovered a judgment against the Dairy Company, and, in the present action, sues in the capacity of creditor, relying solely upon the title of the Dairy Company, its debtor, whose rights were not adjudicated in the first suit.
[5] Two specifications of insufficiency of evidence remain for consideration. It is claimed that there was no evidence in support of the finding to the effect that the Dairy Company was insolvent. However, it was stipulated that plaintiff obtained judgment against the said company in the sum of $1,108.05 and ten dollars costs, no part of which had been paid, and that execution had been issued and returned unsatisfied. Upon this particular phase of the case that is the only showing required of plaintiff to enable him to maintain the suit. (Herrlich v. Kaufmann,
The judgment is affirmed.
Shurtleff, J., Sloane, J., Shaw, J., Wilbur, J., and Lawlor, J., concurred.