Opinion
Rehearing Denied July 2, 1930
Hearing Granted by Supreme Court July 31, 1930
Appeal from Superior Court, City and County of San Francisco; James G. Conlan, Judge.
Action by Frank D. Cohan against Kenneth Shibley, in which Marion Shibley intervened. From the judgment, the defendant appeals, and the plaintiff appeals from that part of the judgment in favor of the intervener and against plaintiff.
Judgment against the defendant affirmed, and the portion appealed from by plaintiff reversed.
COUNSEL
Joseph A. Brown, of San Francisco, for appellant.
Milton T. U’Ren, of San Francisco, for respondent.
Livingston & Livingston, of San Francisco, for intervener.
OPINION
PER CURIAM.
The above action was brought to recover on a promissory note executed by defendant, Kenneth Shibley, to the plaintiff. The action was filed on June 24, 1927, and on the same day an attachment issued by virtue of which the sheriff levied upon a certain deposit in the Crocker First Federal Trust Company of San Francisco standing in the names of Hugh Hagan and David Livingston, but which was the community property of defendant and Marion Shibley, his wife. The levy was made on June 25, 1927. On July 29, 1927, said Marion Shibley filed in the action her complaint in intervention, setting forth five separate causes of action, four of which were dismissed at the trial, and on January 14, 1929, she filed an amendment to her complaint, alleging a sixth cause of action. The complaint in intervention was not served upon the defendant. He was, however, served with the amendment thereto, and no answer to either pleading was made by him. He denied, however, the allegations of plaintiff’s complaint. The validity of plaintiff’s lien is not questioned, its priority only being contested by the intervener.
The case was tried on February 1, 1929, and the court found for the plaintiff as against the defendant. It also found against the intervener on her fourth cause of action, and in her favor upon the allegations of her sixth cause of action set forth in her amendment to her complaint. The findings last mentioned so far as material are, in substance, as follows: That on November 17, 1926, the intervener commenced an action in the superior court of the city and county of San Francisco against defendant Shibley for separate maintenance, in which action he appeared; that thereafter orders were made in the action requiring him to pay certain sums as temporary alimony and attorneys’ fees, no part of which had been paid; that on December 24, 1926, an order was made restraining defendant from transferring certain community real property, but that by agreement this property was sold and the proceeds deposited in the Crocker First Federal Trust Company in the names of Hugh Hagan and David Livingston to abide the further agreement of the parties or the order of the court; that on June 20, 1927, an order was made directing defendant on the 27th day of the same month to show cause why he should not be enjoined until the determination of the action from transferring or incumbering the deposit and other property, and restraining him from so doing pending the hearing on the order to show cause; that the order also directed defendant and said Hagan and Livingston to show cause at the hearing why the deposit should not be used in payment of the alimony and attorneys’ fees theretofore allowed in the action; that on June 28, 1927, following the hearing on the order to show cause the court granted a temporary injunction restraining defendant from transferring or incumbering the deposit, and ordered that execution issue for the amount of unpaid alimony and attorneys’ fees, and imposed a lien upon the deposit to secure the payment of said amounts. The court also found that pursuant to said order execution issued, and on June 28, 1927, was levied upon the deposit mentioned, and that the present action, contrary to the contention of the intervener, was brought in good faith and not to defeat her rights, nor hinder, delay, or defraud any of defendant’s creditors.
Judgment was entered for the plaintiff and against the defendant Shibley for the amount of the note, but it was also adjudged that intervener had a charge and lien upon the deposit prior to the lien of plaintiff’s attachment, and that the lien of her execution was also superior thereto. The plaintiff and defendant were further enjoined from interfering in any way with the intervener’s rights therein.
The plaintiff has appealed from that part of the judgment which is in favor of the intervener and against him, and defendant has appealed from the whole of the judgment.
Defendant urges as grounds for reversal that the original complaint in intervention was not served upon him and that no order permitting the defendant to file an amendment thereto was made, and also that he was not served with notice of trial.
The code requires the complaint in intervention to be served upon the parties to the action (Code Civ.Proc. § 387). In the present case the defendant on the date of filing intervener’s complaint, namely, July 29, 1927, was a nonresident of the state, and did not appear in the action until July 13, 1928. The amendment to the complaint in intervention was, however, served upon his attorney on January 7, 1929. This pleading recites that it was filed by leave of court first had and obtained, and, while no such order appears in the record, there is nothing therein inconsistent with the declaration, and in the absence of an affirmative showing to the contrary the same must be accepted as true. Segerstrom v. Scott, 16 Cal.App. 256, 116 P. 690.
The court acquired jurisdiction of the proceeding in intervention when pursuant to its order intervener filed her complaint (Ah Goon v. Superior Ct., 61 Cal. 555); and the failure to serve the same upon the defendant, while an irregularity, did not affect the question of jurisdiction, nor was it prejudicial to the defendant for the reason, as stated, that each cause of action therein with the exception of the fourth was subsequently dismissed, and as to this the findings were against the intervener.
Defendant admits that on November 15, 1928, a notice was served upon his attorney, stating that the cause had been set for trial and would be tried on December 13, 1928. The record shows that on that date no department of the court was available for the trial, and that the matter was continued from day to day on the calendar of the presiding judge until December 24, 1928. On that date the matter was again continued until January 7, 1929, the order reciting that the continuance was "on account of respective counsel’s agreement as to state of facts." The trial was thereafter regularly continued until January 24, 1929. On that date no order of continuance so far as shown was made, but the case was transferred to department 14 of the same court, and on January 26, 1929, was placed on the extra sessions calendar. On January 28, 1929, an order was made continuing the trial to the following day, and thereafter the case was continued from day to day until February 1, 1929, when the trial was had. The defendant did not appear at the trial, and now maintains that the failure to serve him with a further notice thereof was an error requiring a reversal of the judgment.
It was held in Estate of Dean, 149 Cal. 492, 87 P. 13, that a failure to give notice of trial was prejudicially erroneous and necessitated a reversal. In that case the matter was regularly set and notice for trial on November 14, 1904, on which date on motion the trial was continued to February 7, 1905. On January 24, 1905, defendants made an application for an order requiring the plaintiffs, who were nonresidents, to furnish an additional undertaking as security for costs and for a stay of proceedings, until the same should be furnished. The motion was granted, but no order was then or subsequently made relative to the time of trial. On February 7, 1905, one of the plaintiffs, without notice to the other, filed the necessary undertaking. On that day the case was called for trial, and, none of the plaintiffs being present except the one who filed the undertaking, the proceeding was on motion dismissed for failure of the plaintiffs to appear. It was held on appeal from the judgment of dismissal that the order of January 24, 1905, in effect, vacated the order fixing the day of trial and left the matter to be again set for trial or triable on the original date upon a new notice. The court, however, referring to the order of continuance made on November 14, 1904, said: "If it were not for the subsequent proceedings had in January, 1905, this order, made on motion of plaintiffs, would undoubtedly be held effectual to dispense with further notice of the time of the trial therein designated." The judgment recites that the cause came on regularly to be heard; and, in the absence of anything in the record to show the contrary, it will be presumed on appeal that orders continuing the cause from the 24th to the 28th of January, 1929, were regularly made (2 Cal.Jur. Appeal and Error, § 499, p. 852; 4 Cor.Jur., Appeal and Error, § 2686, p. 752); and the fact that continuances were ordered daily from the date last mentioned to the date of trial strongly supports the inference that previous orders were made.
The plaintiff contends that the trial court erred in its conclusion that the intervener has a lien or charge upon the fund superior to the lien of the attachment.
The order for the payment of alimony and attorneys’ fees made in the suit for separate maintenance was a judgment independent of the final judgment in the action. Clopton v. Clopton, 161 Cal. 481, 119 P. 651; Robbins v. Mulcrevy (Cal.App.) 281 P. 668. Such judgments are the same as any money judgment, the wife’s position being "assimilated to that of a creditor of her husband" (Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L.R.A. 626, 56 Am.St.Rep. 97; Tuers v. Tuers, 131 Cal. 625, 63 P. 1008; Lisenbee v. Lisenbee, 42 Cal.App. 567, 183 P. 862); and the court may enforce the same by the appointment of a receiver of the property of the husband (Civ.Code, sec. 140) or by an order imposing a lien thereon. Estate of Smith, 200 Cal. 654, 254 P. 567. Intervener contends that the effect of the order restraining her husband from transferring or incumbering the deposit was to impose such a lien, and, in support thereof, cites the following cases: In Elmwood Place Loan, etc., Co. v. Cincinnati Concrete Co., 6 Ohio App. 43; Davidson v. Dingeldine, 295 Ill. 367, 129 N.E. 79, and Vanzant v. Vanzant, 23 Ill. 485, it was held that a confession of judgment by a defendant violated an order restraining him from alienating or incumbering his property pending the trial of an action by his wife for divorce or support, and that a subsequent judgment for alimony took priority over the confessed judgment. The same rule has been followed in other cases. Springfield Marine, etc., Ins. Co. v. Peck, 102 Ill. 265; Union Trust Co. v. Southern, etc., Navigation Co., 130 U.S. 565, 9 S.Ct. 606, 32 L.Ed. 1043. Forrester v. Forrester, 155 Ga. 722, 118 S.E. 373, 29 A.L.R. 1363, also cited by respondent, holds that in an action for support against an absentee husband the court has jurisdiction, by a proceeding quasi in rem, to impose a lien upon a debt owing the husband by a resident of the state as security for the payment of alimony. Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L.R.A. 626, 56 Am.St.Rep. 97, was a suit for separate maintenance by a wife against her absentee husband who, in order to defeat the action, had transferred his California property. A receiver, who was appointed at the commencement of the action, took possession thereof, and it was held that by the receiver’s possession and the due publication of summons the court acquired jurisdiction to subject the property to the satisfaction of its judgment. The court in its opinion refers to Bragg v. Gaynor, 85 Wis. 468, 55 N.W. 919, 21 L.R.A. 161. This case was a creditors’ bill to reach certain debts evidenced by notes and mortgages executed by residents of Wisconsin to defendant Gaynor and by him assigned in fraud of Bragg, his judgment creditor. Both Gaynor and the fraudulent assignee, who were nonresidents, were served with process out of the state, and failed to appear. The court held that such debts were property in the state; that the service of an injunction upon the mortgagors, who were made parties defendant, restraining them from paying the nonresident assignee brought the debts under the control of the court so that its judgment avoiding the assignment, and appointing a receiver to collect the debts and apply the proceeds to the plaintiff’s demand, was valid. The following cases are also in accord with this rule: Kelley v. Bausman, 98 Wash. 686, 168 P. 181; Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017; Brewer v. De Camp, etc., Co., 139 Tenn. 97, 201 S.W. 145. In many of the above decisions, together with the case of Green v. Green, 23 Ohio Cir.Ct.R. 323, cited by intervener, it is declared that the doctrine of lis pendens is applicable to a suit for divorce or a proceeding for the allowance of alimony; but intervener contends that such is not the rule in this state. Sun Ins. Co. v. White, 123 Cal. 196, 55 P. 902, 904; 1 Cal.Jur. Alimony, § 91, p. 1041; 1 R.C.L., § 890. Moreover, the doctrine has been held to apply only to real property. MacDermot v. Hayes, 175 Cal. 95, 170 P. 616. It is the rule in California, as in other jurisdictions, that an injunction operates strictly in personam (Berger v. Superior Ct., 175 Cal. 719, 167 P. 143, 15 A.L.R. 373; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25; Fleckenstein Bros. v. Fleckenstein, 66 N.J.Eq. 252, 57 A. 1025; Armstrong v. Kinsell, 164 N.C. 125, 80 S.E. 235; 32 Cor.Jur. Injunctions, § 69, p. 83; Spelling, Injunctions, § 1), and not against the property (Schmaltz v. York Mfg. Co., 204 Pa. 1, 53 A. 522, 59 L.R.A. 907, 93 Am.St.Rep. 782); and while transfers and agreements in violation thereof are invalid as to the complainant or those claiming under him, except as to innocent third persons, and may be set aside (Powell v. Bank of Lemoore, 125 Cal. 468, 58 P. 83; Springfield Marine, etc., Ins. Co. v. Peck, supra; Union Trust Co. v. Southern, etc., Co., supra), it is the rule that the rights of persons not parties to the action are not affected thereby (Moulton v. Parks, 64 Cal. 166, 30 P. 613; Harvey v. Smith, 179 Mass. 592, 61 N.E. 217), except to the extent that certain classes, such as agents, servants, attorneys, aiders, and abettors, and persons represented in the suit may by their acts render themselves amenable to punishment for its violation. Berger v. Superior Ct., supra; Rigas v. Livingston, 178 N.Y. 20, 70 N.E. 107.
In the case at bar, neither the plaintiff nor the bank was a party to the proceeding, nor were they or the trustees restrained by the order, which ran only against the defendant Shibley. Moreover, the proceeding was one to determine whether a lien should be imposed, and the order shows no intention to do more than to restrain Shibley from transferring or incumbering the deposit pending the hearing. Community property does not come into the custody of the court merely by the institution of a suit for divorce (Lord v. Hough, 43 Cal. 581; Sun Ins. Co. v. White, supra), and an order of the court appointing a receiver thereof does not ipso facto constitute a sequestration of the property independent of actual possession or an attempt to take possession (Bank of Woodland v. Heron, 120 Cal. 614, 52 P. 1006; 22 Cal.Jur. Receivers, § 76, p. 490); nor in principle should a different rule apply to motions to subject the property to a lien, though the husband be restrained from disposing of or incumbering the same, pending the hearing. As the court in Sun Ins. Co. v. White, supra, referring to section 140 of the Civil Code, said: "This is the only statutory power given upon this subject, and, as the Civil Code ‘establishes the law of this state upon the subjects to which it relates’ (section 4), it must be held that it is exclusive, and that the wife can have the property of the husband set apart as security for the payment of alimony, or burdened, with a charge for her maintenance, only by an order of the court therefor." The lien being created by the order imposing it upon the property (Civ.Code, § 140), as in other cases, a mere right thereto does not give priority over an attachment levied before the lien actually comes into existence. Bailey v. Warner, 28 Vt. 87. It is the statutory rule that, other things being equal, different liens upon the same property have priority according to the time of their creation. Civ.Code, § 2897. In the present case the husband’s debt was incurred previous to the institution of the intervener’s suit for separate maintenance, and, according to the court’s findings, the action thereon was brought in good faith and not, as alleged by the intervener, to defeat her rights nor hinder, delay or defraud her husband’s creditors. The cases cited by the intervener fall short of supporting her claim that the restraining order created a lien in her favor; and under the circumstances shown, we see no legal or equitable reason why the priority of plaintiff’s lien should not be recognized and enforced.
No ground for reversing plaintiff’s judgment against the defendant is shown; and as between the defendant and the intervener the latter’s right to a lien upon the deposit is plain. The judgment against the defendant is therefore affirmed, and the portion thereof appealed from by the plaintiff is reversed.