Opinion
Hearing Granted by Supreme Court Sept. 3, 1929
Appeal from Superior Court, Glenn County; Claude F. Purkitt, Judge.
Action by J.H. Berghauser against the Golden State Orchards, in which a writ of attachment was issued, and Caroline Moore intervened. From a judgment for intervener, plaintiff appeals. Affirmed.
COUNSEL
W.F. Williamson, of San Francisco, and R.M. Rankin, of Williams, for appellant.
Ware & Ware, of Chica, for respondent.
OPINION
PLUMMER, J.
This action was brought by the plaintiff to recover judgment against the defendant, Golden State Orchards, a corporation, upon two promissory notes. Upon the filing of the complaint a writ of attachment was issued, by virtue of which the sheriff of the city and county of San Francisco was commanded to attach all moneys and credits due to the defendant, owing from and in the possession of the California Packing Corporation. The defendant Golden State Orchards, a corporation, had sold and delivered to the California Packing Corporation a large quantity of dried prunes, etc., and at the time of the levy of the attachment the California Packing Corporation had not paid the amount of the purchase price of said dried fruit. The record further shows that, after the sale of said prunes and other fruits by the defendant to the California Packing Corporation, and before the beginning of this action and the service of the writ of attachment herein referred to, the defendant had sold and transferred to the intervener its claim against the California Packing Corporation for the moneys due and unpaid on account of the purchase price of said fruit. After the beginning of the action by the plaintiff and the issuance and service of the writ of attachment as just stated, the intervener, Caroline Moore, sought and obtained from the court permission to intervene and set up her claim and right to the money and credits in the possession of the said California Packing Corporation. The court found in favor of the intervener to the extent of her claim, to wit, that said intervener was the owner of all and singular the amount of money owing by the said California Packing Corporation on account of its purchase of dried fruits from the defendant Golden State Orchards Corporation, and that the intervener was entitled to have paid to her the whole amount of said moneys. The plaintiff demurred to the complaint in intervention, and, upon his demurrer being overruled, filed an answer to the complaint in intervention, and raised the question that the assignment had been made to hinder, delay, and defraud creditors. The court found against this contention, and, as the cause is here upon the judgment roll alone, the finding must be taken as supported.
Upon this appeal, the appellant contends that, under the provisions of section 387 of the Code of Civil Procedure, Caroline Moore had no legal right to intervene, and that the court erred in permitting her so to do. In support of this contention, a number of cases bearing upon the right of intervention are cited to the point that the intervener must have some interest in that which is involved in the litigation, and, as the suit is upon two promissory notes, the promissory notes only are involved in this action. We do not need to review the cases cited, for the simple reason that they are not really in point in this controversy. The question presented for us to decide upon this appeal may be stated as follows: Has the claimant to property which has been attached in an action between other parties to recover upon an indebtedness in which such claimant has no interest a right to intervene in defense of his own claim of ownership to the property attached? Or, to state the question as presented by the record in this case— the plaintiff has sued upon two promissory notes executed by the defendant, and has attached moneys and credits in the possession of a third person, claimed by the intervener. Under such circumstances, is intervention permissible, and can the alleged owner of such credits be permitted to come in and set up such ownership? That a claimant to property attached under such circumstances has a right to intervention is no longer an open question in this state. Carter v. Garetson, 56 Cal.App. 241, 204 P. 1090; Bonfiglio v. Bonfiglio, 203 Cal. 409, 264 P. 747; Dennis v. Kolm, 131 Cal. 91, 63 P. 141. It would serve no useful purpose to incumber the record with a review of the cases just cited. We may, however, state that the question raised upon this appeal as to whether an intervention lies under the circumstances involved herein is fully covered and completely answered in the case of Carter v. Garetson, supra. The opinion in that case cites a number of authorities from other states supporting the same rule. The cases just cited being conclusive of the question raised upon this appeal, it follows that the judgment of the trial court should be, and the same is hereby, affirmed.
We concur: FINCH, P.J.; THOMPSON, J.