Opinion
12-19-1957
Thomas EISTRAT, Plaintiff and Appellant, v. Karl A. CEKADA, Defendant and Respondent. * Civ. 22327.
Samuel S. Alder, Los Angeles, for respondent.
Thomas EISTRAT, Plaintiff and Appellant,
v.
Karl A. CEKADA, Defendant and Respondent. *
Dec. 19, 1957.
As Modified on Denial of Rehearing Jan. 14, 1958.
Hearing Granted Feb. 11, 1958.
Thomas Eistrat, Alhambra, in pro. per.
Samuel S. Alder, Los Angeles, for respondent.
DORAN, Justice.
The complaint herein, filed September 30, 1954, seeks damages for the conversion of pine lumber taken from plaintiff's property in Tulare County about November 1, 1949. The defendant's answer pleads the three year statute of limitations contained in Section 338(3) of the Code of Civil Procedure. As a separate defense defendant alleges that on October 1, 1949, the lumber in question was purchased from the receiver in bankruptcy in the matter of Tom G. Jones, doing business as Jones Lumber and Mill Company for the sum of $588, without knowledge of the plaintiff's rights thereto.
It is alleged in the complaint that the commencement of plaintiff's action was stayed by injunction in the Jones bankruptcy case until October 1, 1951. Appellant contends that the three year statute of limitations does not commence to run 'while the property is in the custody of the bankruptcy court', nor 'while plaintiff is under reasonable apprehension that his filing an action for conversion in California State courts would be a contempt of the bankruptcy court'. Appellant also claims that such an action for conversion 'does not accrue where defendant rightfully had possession pending determination of title, until the possession became unlawful after adverse determination of title by a bankruptcy court and the refusal of the defendant to return the possession to plaintiff after demand therefor.' to plaintiff after demand therefor'. Jones claimed possession and title of the property in a petition for a restraining order and order staying suits against plaintiff, concurrently with the filing of a Chapter XI proceeding under the Bankruptcy Act, 11 U.S.C.A. § 701 et seq., alleging that plaintiff had 'actively been engaged in harassing your petitioner by going to his creditors', etc., and 'preventing petitioner in the operation of his sawmill and lumber business'. Thereafter the defendant Cekada paid the receiver in bankruptcy $588 for whatever right, title or interest the receiver had therein, and in November, 1949, carried away the lumber in question.
On July 15, 1949, Federal Judge Leon Yankwich refused to dissolve the restraining order and ordered a surety bond in plaintiff's favor 'to indemnify--against loss from the operations of the said debtor from the date hereof to the time of the first meeting of creditors'.
Thereafter, on September 29, 1949, plaintiff filed a petition to reclaim the property as it existed on June 24, 1949. On review before Federal Judge Beaumont, an order was entered October 1, 1951, granting plaintiff's petition and dissolving the restraining order. On December 12, 1954 Federal Judge Beaumont granted plaintiff a motion for judgment against the bonding company on the bond previously ordered by Judge Yankwich, plaintiff being awarded $500 for damages for removal of a sawdust pile fire hazard.
After the federal court had granted plaintiff's petition to reclaim the property, the plaintiff, on November 28, 1951, made a demand, by registered letter, on the defendant for the return thereof, which demand was refused on December 10, 1951. The present action for conversion was filed on September 30, 1954, within three years from plaintiff's demand and the defendant's refusal.
The trial court found that the restraining order issued by the Referee in Bankruptcy merely restrained the plaintiff from commencing any action against the bankrupt Jones, and did not prevent plaintiff from filing action against the defendant Cekada or against any one other than the bankrupt. The court further found that defendant purchased the lumber in question from the bankrupt's estate on or about November 22, 1949, at which date plaintiff's cause of action arose; that plaintiff had knowledge thereof about December 1, 1949, and that the action filed September 30, 1954 was therefore barred by the three year statute of limitations.
The restraining order above referred to reads as follows: 'ORDERED that all persons be, and they hereby are, enjoined and stayed until final decree herein, from commencing or continuing any suit against Tom G. Jones, doing business as Jones Mill and Lumber Company, the above named debtor and the said Thomas Eistrat is further restrained and enjoined from interfering with the debtor in the possession of his property and in the operation of the debtor's mill and lumber business'. As found by the trial court, the order does not prohibit the bringing of an action against any person other than the bankrupt, even if, as in this case, the defendant is a purchaser from the bankrupt's estate. Plaintiff's cause of action was not against the debtor but against the purchaser who took and removed the lumber. The latter part of the order restraining Eistrat from 'interfering with the debtor' is likewise inapplicable and furnishes no support for appellant's contentions.
Appellant's argument to the effect that the order should be and was understood to mean 'that I was restrained from commencing any suit against anyone purchasing any lumber or taking any lumber' from the property in question, is answered by the trial court's statement that appellant's opinion as to its meaning 'wouldn't actually change the effect of the referee's restraining order. * * * The parties would be in terrible shape if the restraining order was not to be determined by what is on its face'.
A cause of action for conversion arises immediately upon the commission of the acts of conversion (Rose v. Dunk-Harbison Co., 7 Cal.App.2d 502, 506, 46 P.2d 242), which in the instant case occurred more than three years prior to the institution of plaintiff's action.
While it is true that the running of a statute of limitation may be suspended during a period in which plaintiff is legally prevented from taking action, no case has been presented holding that a statute of limitations will be deemed suspended for the reason that the plaintiff has misinterpreted the terms of a restraining or other order.
The appellant complains of a prematurely filed cost bill in the amount of $45.50, which was apparently filed on June 25, 1954, three days after conclusion of the trial in respondent's favor but before entry of the judgment on July 11, 1954. On July 23, 1954, appellant filed a motion to strike the memorandum of costs on this ground; the same was denied July 30, 1954 and costs taxed at the amount of the memorandum.
Section 1033 of the Code of Civil Procedure requiring a successful party to file a memorandum of costs 'at any time after the verdict or decision of the court and not later than ten (10) days after the entry of the judgment', also specifies that 'A party dissatisfied with the costs claimed may, within five (5) days after the service of a copy of the bill of costs, file a motion to have the same taxed by the court' etc. Appellant's motion to strike the cost bill was filed more than ten days after entry of the judgment and almost a month after filing of the cost bill. In any event, as said in King v. Carroll, 11 Cal.App.2d 745, 749, 54 P.2d 730, 732, 'While it is true that the cost bill was not apparently served in accordance with law, we think that this was but an irregularity, and that the judgment for costs is not void on its face'. The record discloses no reversible error.
The judgment is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 324 P.2d 881.