Buffington v. Ohmert

• Decision Date: 07 August 1967
• Citation: 61 Cal.Rptr. 360,253 Cal.App.2d 254
• Court: California Court of Appeals
• Parties: Judy BUFFINGTON, Plaintiff, v. Bonnie L. OHMERT, Defendant and Appellant, Richard Ohmert, Defendant and Respondent. Civ. 30428.

Page 360

61 Cal.Rptr. 360

253 Cal.App.2d 254

Judy BUFFINGTON, Plaintiff, v.Bonnie L. OHMERT, Defendant and AppellantRichard Ohmert, Defendant and Respondent.

Civ. 30428.

Court of Appeal, Second District, Division 4, California.

Aug. 7, 1967.

Hearing Denied Oct. 5, 1967.

Bonnie L. Ohmert, in pro. per.

Edward J. Skelly, North Hollywood, for defendant and respondentRichard Ohmert.

JEFFERSON, Associate Justice.

DefendantBonnie Ohmert appeals from a judgment in favor of her codefendant husband Richard Ohmert, and against her (with her consent), in an action brought by her motherJudy Buffington(who does not appeal).The latter alleged that the defendants, then in the process of securing a divorce, had borrowed money from her on three separate occasions between the years 1951 and 1958, and had not repaid it.Mrs. Ohmert admitted liability; Mr. Ohmert denied any indebtedness.He asserted that the funds advanced were gifts; that even if held to be loans, recovery was barred by the statute of limitations.In finding in favor of Mr. Ohmert, the trial court concluded that the statute of limitations was a good defense.

Initially, the question is raised whether Mrs. Ohmert has standing to bring this appeal.Is she a 'party aggrieved' by the judgment within the meaning of Code of Civil Procedure, section 938?A 'party aggrieved' is one who has an interest recognized by law in the subject matter of the judgment and whose interest is injuriously afffected by the judgment.(Danielson v. Stokes, 214 Cal.App.2d 234, 237, 29 Cal.Rptr. 489.)

Mrs. Ohmert had a right of contribution which was cut off by the judgment in favor of her codefendant husband.Civil Code, section 1432 provides: 'A party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.'Since the judgment in favor of her husband deprived her of this right, Mrs. Ohmert is aggrieved.

The rule alluded to by Mr. Ohmert, that a defendant who is individually liable is not aggrieved by the exoneration of a codefendant (Du Frene v. Kaiser Steel Corp., 231 Cal.App.2d 452, 455, 41 Cal.Rptr. 834), applies to joint tortfeasors whose right of contribution is strictly limited, coming into existence only after a money judgment has been rendered jointly against them.(Guy F. Atkinson Co. v. Consani, 223 Cal.App.2d 342, 35 Cal.Rptr. 750;Code Civ.Proc. §§ 875-- 880(enacted in 1957).)Unless and until that event occurs, no right exists between joint tortfeasors.But here, the right exists prior to and quite apart from the judgment.

We have examined all of the evidence which was before the trial court.W...