Opinion
Hearing Granted by Supreme Court Aug. 22, 1935.
Appeal from Superior Court, Los Angeles County; Carl L. Stutsman, Judge.
Action by Barney Oldfield against the Bank of America National Trust & Savings Association. From a judgment for defendant, plaintiff appeals.
Affirmed.
COUNSEL
A. E. McManus and Carroll Allen, both of Los Angeles, for appellant.
Louis Ferrari, of San Francisco, and Edmund Nelson and G. L. Berrey, both of Los Angeles, for respondent.
OPINION
WILLIS, Justice pro tem.
This is an appeal by plaintiff from a judgment, and is based on the judgment roll alone. The facts of the case are therefore those reflected by the findings of fact, hereinafter stated, and the main question herein is whether or not those findings support the conclusion of the court and its judgment based thereon.
On August 1, 1926, appellant obtained a judgment against one J. M. Danziger for $10,000, on which two writs of execution were issued and levies made thereunder by the sheriff of Los Angeles county on California Bank, a banking corporation, on April 27, 1927, and January 28, 1929, respectively, garnishing certain property and money then in the possession of said bank and claimed by appellant to belong to said Danziger, but which money and property the trial court found in this case did not belong to him. Other persons made claim to part or all of said money and property, among them being Ivan R. Bean, whom the court found was an assignee of the respondent bank for the purpose of collecting the claim he represented. On February 19, 1929, the California Bank filed an interpleader action against the sheriff, this appellant, said Ivan R. Bean, Edith Wake Danziger, and Lina Danziger, and others, in which action an order was entered permitting the California Bank to deposit the money and property, subjected to the adverse claims of the parties, with the clerk of the superior court, said property including the sum of $15,081.12 in cash. Upon deposit of the money and property, the California Bank was dismissed from the case.
In the interpleader action said Ivan R. Bean appeared and answered, with other defendants. On April 25, 1930, judgment therein was entered against this appellant adjudging that said money and property belonged to Edith Wake Danziger, subject to a lien thereon or interest therein in favor of Lina Danziger in the amount of $4,400 and that said Ivan R. Bean had no interest therein or right thereto. The court further found that it was not true that said money and property of the value of $40,000 were ordered by the court to be deposited with the clerk of said court pending the final determination of said cause. At that time there was a rule of the superior court in and for Los Angeles county, No. 41, providing the procedure for securing an order of court for withdrawal of moneys or property deposited under sections 572, 573, and 574 of the Code of Civil Procedure, by which it was in substance provided that upon filing by the claimant of his verified petition setting forth the basis of his claim and giving the names of all parties interested therein, the presiding judge should order the custodian of said funds and all other persons interested therein and named in said order to show cause in the law and motion department at a time specified why an order should not be made directing the delivery or payment thereof to the petitioner, and that after such hearing the court should make such order as might be necessary or proper. On May 2, 1930, a stipulation was made and filed in said interpleader cause whereby Edith Wake Danziger and Lina Danziger on their part and Ivan R. Bean on his part stipulated that out of the funds deposited with the clerk of said court there should be paid to said Ivan R. Bean the sum of $3,000 in consideration of his waiving all his claim, right, title, and interest in and to said fund, which by inference was based on an execution lien on a judgment against J. M. Danziger, and of waiving his right of appeal in said action and satisfying his judgment against J. M. Danziger to the extent of $3,000; and thereupon the presiding judge of said court entered an order for the payment of said sum of money to said Ivan R. Bean, the said sum was paid to him on May 2, 1930, and he thereupon satisfied his judgment against J. M. Danziger to the amount of $3,000. Later on the same day all the remaining portion of the funds on deposit was withdrawn by Edith Wake Danziger and Lina Danziger and Charles Montgomery.
The court further found that no hearing was held upon any petition for delivery of the moneys in said deposit as provided in said rule of court. Also the court found that it was not true that Ivan R. Bean and respondent bank knew or should have known that said funds were so procured fraudulently and in violation of the rights of the appellant, and that it was not true that the whole transaction of procuring said funds was done for the purpose of cheating and defrauding appellant out of his interest in said funds in the event that said judgment should be reversed on appeal.
On April 30, 1930, notice of entry of the judgment in the interpleader cause was served on appellant, and on May 8, 1930, appellant filed a notice of appeal from said judgment, but he neglected to procure any stay of execution thereon.
The court also found that during the time between judgment entry on April 26, 1930, and the order of withdrawal of May 2, 1930, appellant had full notice and knowledge that said Ivan R. Bean and Edith Wake Danziger and Lina Danziger were negotiating respecting a settlement of the demands of said Ivan R. Bean against said J. M. Danziger and against the funds on deposit, and that said Ivan R. Bean intended to make a settlement with said J. M. Danziger and to procure the payment to him from said deposit and to release his claim to said funds and waive his right of appeal and give partial satisfaction of judgment to said J. M. Danziger. On May 2, 1930, on the stipulation and order above mentioned, the sum of $3,000 was paid from said funds to Ivan R. Bean, who waived right of appeal and entered partial satisfaction of his judgment against J. M. Danziger, and said Ivan R. Bean, as trustee for respondent bank, received said sum and paid the same over to respondent bank. When said sum was so paid over to Ivan R. Bean, there was in said deposit a sum in excess of $28,000 in cash and other property of the value of upwards of $12,000. The court further found that by reason of delay of appellant in procuring a stay of execution on the judgment in the interpleader cause and in permitting Edith Wake Danziger and Lina Danziger to withdraw a portion of said remaining funds, appellant was guilty of such laches as to prejudice respondent bank.
On March 31, 1932, the Supreme Court reversed the judgment in the interpleader cause upon the grounds that as to appellant herein there had been a prior adjudication that the said funds belonged to said J. M. Danziger. California Bank v. Traeger, 215 Cal. 346, 10 P.2d 51. Thereafter said cause was retried and a judgment was entered therein on June 9, 1933, adjudging this appellant to be entitled to and that he has a first lien in the sum of $10,000 with certain interest "on the money and securities heretofore deposited with the clerk of this court," describing the same, and that J. M. Danziger is entitled, after the lien of appellant shall have been satisfied, to the balance of said money and securities, and that Edith Wake Danziger and Lina Danziger and other defendants, other than J. M. Danziger and appellant, take nothing by said action. An appeal from this judgment taken by Edith Wake Danziger and Lina Danziger was dismissed. On these facts the court herein concluded that appellant was not entitled to recover anything from respondent, and judgment was accordingly entered from which this appeal is taken.
Appellant claims that he is entitled to recover from respondent bank the amount received by it through its trustee Ivan R. Bean out of the deposit in the hands of the clerk of the court, on the theory that respondent obtained the same under an erroneous judgment afterwards reversed. There is a general rule that a party obtaining through a judgment, before reversal, any advantage or benefit must restore what he got to the other party, after the reversal. Reynolds v. Harris, 14 Cal. 667, 681, 76 Am. Dec. 459; Cowdery v. London, etc., Bank, 139 Cal. 298, 73 P. 196, 96 Am. St. Rep. 115; Ward v. Sherman, 155 Cal. 287, 100 P. 864, 865. Herein appellant claimed an execution lien on the money and property taken into custody by the court in the interpleader cause, to the extent of the amount of his judgment against J. M. Danziger. The court in that cause was called upon to ascertain and determine the nature and order of priority of the claims of defendants therein. It adjudged that neither appellant nor Bean had any lien or valid claim upon the money and property, but that Edith Wake Danziger and Lina Danziger were the owners thereof and entitled thereto. By the judgment appellant’s execution lien was voided. In the absence of any stay of execution the successful parties last above named stipulated that Bean should have $3,000 of the funds on deposit, in consideration of his waiving his claim on the funds and his right to appeal and of his satisfying a judgment against J. M. Danziger to the extent of $3,000. On this stipulation the presiding judge ordered the payment of that sum to Bean, who received and delivered it over to respondent bank as he was bound to do, and he thereupon gave up his right to appeal and satisfied the judgment against J. M. Danziger pro tanto.
It is clear that in this action the court cannot restore the $3,000 above mentioned to appellant without placing respondent bank in the position of having waived its claim through its trustee, Bean, to the funds and of having satisfied a judgment against J. M. Danziger to the extent of $3,000, and then also being deprived of the $3,000. In Ward v. Sherman, supra, it is said: "Where a judgment or decree of an inferior court is reversed by a final judgment on appeal, a party is in general entitled to restitution of all the things lost by reason of the judgment in the lower court; and, accordingly, the courts will, where justice requires it, place him as nearly as may be in the condition in which he stood previously." In the light of the plea of laches by respondent bank and the findings of fact thereunder, it would appear that justice does not require restitution of the $3,000 so paid out to respondent’s trustee under authority of the presiding judge of the court. Those findings are binding on this court and reveal the source of appellant’s trouble and loss. It was his omission to secure a stay of execution of the judgment in question, and under which, by authority of the court, respondent through its trustee Bean secured the withdrawal of the $3,000, at a time when appellant had notice and knowledge of such intended withdrawal. In the absence of such stay the court had power to make the order of withdrawal on the stipulation of the parties adjudged to be entitled to the funds on deposit. See Wilson v. Coffey, 116 Cal.App. 635, 3 P.2d 62. The money in question was withdrawn by Edith Wake Danziger and Lina Danziger, to whom it was adjudged by the judgment, not by Bean as the beneficiary under such judgment. In our opinion the conclusion and judgment of the trial court is fully sustained by the findings and is in accord with the law.
The judgment is affirmed.
We concur: CRAIL, Acting P. J.; FRICKE, Justice pro tem.
The Presiding Justice deeming himself disqualified, declined to participate in the case and absented himself during its consideration by the court. Mr. Justice CRAIG was not sitting at any time during its consideration. Under the necessity of the above circumstances, the court during the consideration and determination of the case was composed of Justice CRAIL, Justice pro tem. WILLIS, and Justice pro tem. FRICKE.