Opinion
Rehearing Granted Jan. 10, 1930
Appeal from Superior Court, Los Angeles County; Edward T. Bishop, Judge.
Action by Loren L. Miller against W.C. Price and another. Judgment for defendants, and plaintiff appeals. Reversed.
COUNSEL
L.C. Woods, of Los Angeles, for appellant.
William Ellis Lady, of Los Angeles, for respondents.
OPINION
PLUMMER, J.
This is an appeal by the plaintiff from a judgment in favor of the defendants entered upon the pleadings.
The complaint in the action alleges that on and prior to the 11th day of February, 1926. the plaintiff was the owner of certain real property situate in the county of Los Angeles, described as follows, to wit: The south 25 feet of lot 5, and the north 25 feet of lot 6, in block 42 of Owensmouth, as per Map Book 19, p. 36, of maps in the office of the county recorder of said county; and lots 7, 8, 16, 18, and 20 of block 62 of Owensmouth, as per Map Book 19, p. 36 of maps, in the office of the county recorder of said county. That said property was, at the date mentioned and at the date of the beginning of this action, of the value of $11,500, incumbered to the amount of $2,638, secured by a deed of trust payable on the 17th day of March, 1926; that on the 11th day of February, 1926, the said defendants caused to be issued out of the superior court of the county of Los Angeles an execution in an action entitled "W.C. Price vs. John P. Hight et al.," and that acting under and by virtue of said writ of execution, and under instructions of the defendant as to what property to levy upon, the sheriff of the county of Los Angeles did, on the 13th day of February, 1926, wrongfully and without right so to do, levy upon the property heretofore described; that at the time of the levy upon said property the plaintiff was negotiating for a loan of sufficient amount to satisfy the aforesaid incumbrance, and was at such time offering as security for the money to be loaned a deed of trust on the foregoing described property, and that the plaintiff had no other means by which to obtain a sufficient amount to satisfy said incumbrance; that by reason of said wrongful levy, as aforesaid, the plaintiff was unable to secure the money with which to satisfy the said obligation, and that on the 30th day of July, 1926, the trustees in said trust deed named sold said real property to satisfy the obligation referred to; that by reason of the foregoing wrongful acts on the part of the defendants, the plaintiff suffered damage in the sum of $8,862; wherefore, the plaintiff prayed judgment against the defendants. To this complaint the defendants interposed a general demurrer and also a special demurrer that the complaint was uncertain in some particulars not necessary to be mentioned. The demurrer being overruled, the defendants answered, and in their answer denied the ownership of the plaintiff in and to the real property mentioned; denied that the real property was of the value of more than $2,638; denied that the levy of the execution was wrongful; and then, for a further answer, alleged that on the 16th day of June, 1925, in a certain action pending in the superior court of Los Angeles county, the defendant in this action, W.C. Price, obtained a judgment against John P. Hight, Jr., Harriet M. Hight, his wife, and L.B. Miller, in the sum of $4,587.73, together with the further sum of $7 costs and disbursements, and that said judgment was regularly entered in the judgment records of the county of Los Angeles; that thereafter an execution was issued upon said judgment and the plaintiff gave to the sheriff the following instructions: "You are hereby instructed to levy and attach, by virtue of the accompanying writ, in the above entitled suit, the following described property, and place a keeper in charge at plaintiff’s expense, viz.: All the right, title and interest of the defendant, L.B. Miller, in and to the following described property:" (The property described being the same as that hereinbefore set forth.) Signed: "William Ellis Lady, Attorney for plaintiff." In pursuance of these instructions the sheriff proceeded to make levy upon all the right, title, and interest of L.B. Miller in and to the real property hereinbefore described, making return thereof as provided by law, and delivering a copy of the writ, together with a notice and description of the property levied upon, to the county recorder of Los Angeles county. Upon these pleadings the defendants moved the court for entry of judgment in favor of the defendants, and upon the hearing of said motion, judgment was so entered. The plaintiff’s motion for a new trial being denied, this appeal was taken.
In 21 California Jurisprudence, 240, we find the rules laid down as to how motions or judgments upon the pleadings should be determined. It is there said: "Where a motion is made for judgment on the pleadings the court should dispose of it, even though it has sustained, without leave to amend, a demurrer filed contemporaneously therewith. Such motion should be determined upon the same principles as a general demurrer. Accordingly, on a motion by plaintiff, objections to the answer which are required to be taken by special demurrer or motion to strike out will be disregarded, while on a motion by defendant the court may not consider any matter outside the complaint or any defense thereto in the answer, or any grounds of special demurrer to the complaint; in neither case are questions as to the admissibility or sufficiency of evidence involved." In view of these rules it must be held that the complaint under consideration states a cause of action which, though perhaps defectively stated, may, in any particulars which we might point out, be cured by amendment. The judgment on the pleadings in this action was entered upon, and is sought to be sustained by the respondent by reason of the provisions of section 448 of the Code of Civil Procedure, which reads: "When the defense to an action is founded upon a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the plaintiff file with the clerk, within ten (10) days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant. (If the defendant relies upon a written instrument, in whole or in part, that fact shall be pleaded.)" That such contention is untenable appears from the reading of the written instruments set out in the defendants’ answer. The only written instruments set out are the instructions which were written, given by the defendant to the sheriff, as to what property to levy upon, and the return of the sheriff reciting that he has levied upon all the right, title, and interest of L.B. Miller in and to the real property mentioned, the levy being made, and the return thereof conforming to subdivision 2 of section 542 of the Code of Civil Procedure. There can be no disputing the fact that a levy of execution upon real property, or of any one’s right, title, and interest therein, casts a cloud upon the title, and that to remove such cloud, the owner of the property would be put to the time and expense of more or less extended litigation. There can be no question, likewise, that the levying of an execution upon property of an owner thereof, under the guise that a third person has an interest therein, is wrongful. If such third person has no interest, then and in that case the levy is wrongful. The only question in such cases is the amount of damages to which the plaintiff is entitled by reason of the wrongful levy, and whether only compensatory or exemplary damages should be awarded.
Again, the basis of the motion in this case and the action of the trial court in ordering judgment for the defendants are based upon a misapplication of the provisions of section 448 of the Code of Civil Procedure. That section relates only to the genuineness and due execution of the instruments, and unless they are instruments which are binding upon the opposite party, or writings or instruments which he has signed or executed, then, and in that case, they furnish no grounds for a judgment upon the pleadings as against said opposite party. Such papers are simply in the case for what they are legally worth, with their genuineness and execution admitted. In other words, there is no contradiction that the plaintiff, through his attorney, in the case of Miller v. Hight, gave the instructions set out in the exhibit, nor that the sheriff levied the execution upon the property alleged to be owned by the plaintiff. The two writings set out in the transcript are simply Exhibits A and B, attached to the defendants’ answer, and are not writings binding upon the plaintiff in any particular; he was no party to either of them, and if the instructions were wrongfully given, as alleged by the plaintiff, and the levy wrongfully made, as alleged by the plaintiff, then and in that case Exhibits A and B attached to the defendants’ answer constitute no defense whatever. What we have said clearly appears from the case of Heath v. Lent, 1 Cal. 411, where a similar question was presented. It is there said: "The statute provides, that when a complaint or answer is founded on an instrument in writing, which is alleged to have been signed by the party, the signature shall be considered as admitted, unless denied by such party on oath. The party to be charged was the representative of the estate of the person whose signature appears on the bond. He had not signed the instrument, and could not deny upon oath its execution by the deceased. It is clear that the statute does not extend to any other parties than those who are alleged to have signed the instrument. Such parties are supposed to know the genuineness of their own signatures, but it would be unreasonable to suppose that the representatives of a deceased party possess the same knowledge." In the case of Marx v. Raley & Co., 6 Cal.App. 479, 92 P. 519, 520, an identical situation was presented with the circumstances in the case at bar. In that case a letter was set out in the pleadings, and it was claimed that section 448 of the Code of Civil Procedure was controlling. The court there said: "The principal contention of appellant is that the letter set out in the answer was a written instrument upon which its defense was based, and its execution was not denied under oath. Hence, under section 448, Code Civ.Proc., no proof was admissible controverting its due execution. *** In our opinion, however, the letter embodied in the answer is not an instrument upon which the defense is founded in contemplation of the Code. Heath v. Lent, 1 Cal. 411, declares: ‘It is clear that the statute does not extend to any other parties than those who are alleged to have signed the instrument.’ " In that case it was said, just as we may say here, "that the plaintiff was bound to know the genuineness of the signature of the defendant." However, if the plaintiff did know the genuineness of the signature of the attorney and the instructions given to the sheriff as to the real property upon which he was to make the levy, it would not constitute any defense whatever as to the charge of the levy being wrongful. Again, the exhibits set forth in defendants’ answer as "Exhibits A and B" do not constitute any defense founded upon written instruments as contemplated by the section of the Code of Civil Procedure to which we have referred. They are merely statements of what the defendants have done, through their attorney, and what the sheriff has done in pursuance of instructions given to him by the defendants’ attorney. If, upon the trial of this cause, it should be proven that the levy of the execution was wrongful, the instructions given by the defendants, and the action of the sheriff following the instructions so given, would constitute no defense. Their being set out as exhibits attached to the defendants’ answer in no wise affected the issues to be tried. At best, they constitute matters of evidence which it would be proper for the plaintiff to introduce to show that the sheriff acted under the instructions of the defendants’ attorney, and then supplement the same, if such testimony exists, by testimony showing that the instructions were wrongfully given. In other words, the plaintiff would have to prove just exactly what the defendants allege to constitute a defense, to wit, that the instructions were given, and that the sheriff acted upon the instructions. The cases are numerous to the effect that where a writing does not constitute a defense, the fact that its execution is not denied furnishes no basis for a judgment on the pleadings. Thus, in Citizens’ Bank & Trust Co. v. Pocatello, etc., Co., 41 Idaho, 403, 240 P. 186, it was held: "Where a contract is pleaded in an answer and a copy is attached thereto, failure to deny the genuineness and due execution thereof by affidavit does not admit the same, under C.S. § 6705, when the answer and contract, construed together, do not constitute a defense founded upon a written instrument."
In Krug v. Warden, 57 Cal.App. 563, 207 P. 696, 697, where an intervener in an action to quiet title pleaded a tax deed, and no affidavit denying its due execution and genuineness was filed, sought to invoke the provisions of section 448, Code of Civil Procedure, the court said: "This contention results from a mistaken idea regarding the effect of the provisions of section 448, Code of Civil Procedure. That section provides only that, where a defense is founded upon a written instrument which is copied into the answer, ‘the genuineness and due execution of such instrument are deemed admitted,’ unless there is an answer under oath denying the same. That an instrument is genuine and has been duly executed can mean only that the party who appears to have made it has attached his signature thereto knowingly, and caused it to be delivered. *** Plaintiff could not deny that the deeds had been signed by the purported parties or delivered. It was admissible, however, for him to prove that the conveyance to Warden was void," etc.
In the case of Bussenius v. Warden, 71 Cal.App. 717, 236 P. 371, where a tax deed was attached to the answer and its execution and genuineness were undenied, it was held that the court did not err in denying the defendant’s motion for judgment on the pleadings, as the defenses which the plaintiff might have to the tax deed were unaffected.
Again, in Interstate Realty Co. v. Clark, 77 Cal.App. 558, 247 P. 244, where it was sought to invoke the provisions of section 448 of the Code of Civil Procedure, based upon a tax deed, the court said: "If under our rules of procedure the respondent could attack the validity of the tax deed upon any of the grounds noted, and if any one of these grounds is sufficient to invalidate the deed, then the judgment must be sustained Section 448, Code of Civil Procedure, provides that, when a written instrument is pleaded in the answer, the plaintiff is deemed to admit its genuineness and due execution, unless he controverts it by affidavit. This, however, does not estop the plaintiff from disputing the invalidity of the deed upon any other ground than ‘its genuineness and due execution.’ " Applied to the present case, all that could be claimed for the two exhibits, annexed to the defendants’ answer, is that the defendants’ attorney signed the written instruments and the sheriff executed the levy in pursuance thereof. Other cases might be cited, but these sufficiently establish the law that section 448, Code of Civil Procedure, has no application to papers or written instruments executed only at the behest of one of the litigants and to which the other litigant is not a party, of which she has no knowledge, and especially where they describe actions alleged to be wrongful, as in this case.
We do not need to review the cases cited by the respondent to sustain the judgment in this action, but will content ourselves with saying that an examination of them shows that the opposite litigant was a party to the instruments, or the cases exhibited instances where a party set up a writing showing that he had either no cause of action or no defense. We may mention two of the cases relied upon by the respondent which illustrate what we have just said. In the case of Mangold, etc., v. Utterback, 54 Okl. 655, 160 P. 713, L.R.A.1917B, 364, the instrument was a negotiable promissory note bearing the indorsement of the party sought to be charged. In Ankeny v. Clark, 148 U.S. 345, 13 S.Ct. 617, 37 L.Ed. 474, the written instrument relied upon by the defendant in his answer showed that he had no title to the premises claimed. The other cases cited by respondent are in line with these two, which requires only the statement of what was involved to show their inapplicability to the issues here presented.
The judgment is reversed.
We concur: FINCH, P.J.; R.L. THOMPSON, J.