Day v. Sharp
| Decision Date | 26 August 1975 |
| Citation | 50 Cal.App.3d 904,123 Cal.Rptr. 918 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eva Greene DAY, Plaintiff and Respondent, v. Florence Greene SHARP, Defendant and Appellant. Civ. 44230. |
William Elliott Viney and William P. Camusi, Los Angeles, for defendant and appellant.
Dryden, Harrington & Swartz, Jacob Swartz, James P. Collins, Jr., Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Carroll, Burdick & McDonough, San Francisco, and Harry C. Mabry, Los Angeles, for plaintiff and respondent.
In 1957 plaintiff, respondent herein, Eva Greene Day brought an action in the Superior Court of Los Angeles County to impress a constructive trust upon one-seventh of the residual estate of her stepmother, Mary Greene Wiswall, claiming that her stepmother had entered into an oral contract with Colonel Greene (plaintiff's father and Mary's husband) in which Mary agreed to leave her estate equally to plaintiff and the six children of Mary and Colonel Greene. The defendants included, among others, Mary's six children and the executors of her estate. On February 3, 1961, judgment was entered in favor of plaintiff. The judgment was affirmed by the Supreme Court of California on April 11, 1963. (Day v. Greene, 59 Cal.2d 404, 29 Cal.Rptr. 785, 380 P.2d 385.)
On February 3, 1966, plaintiff commenced an action in Arizona to enforce the California judgment. The trial judge dismissed plaintiff's complaint against one defendant in the Arizona action and granted summary judgment in favor of the other defendants. On appeal the Court of Appeals of Arizona held on January 28, 1970, that the California judgment, as it applied to William Cornell Greene, Florence Louise Greene Sharp, Clarence Kirk Greene and Charles Harrison Greene in their individual capacities, was entitled to full faith and credit. However, the Arizona court held that the California court lacked jurisdiction to render a judgment against George A. Wiswall, as executor of the estate of Mary Greene Wiswall, deceased, Clarence Kirk Greene, as executor and trustee, and Charles Harrison Greene, as executor. (Day v. Wiswall, 11 Ariz.App. 306, 464 P.2d 626, 633.) The parties hereto represent that the Arizona action is still pending.
On April 23, 1973, plaintiff filed a motion in the Superior Court of Los Angeles County to reduce the equitable decree entered in the California action in 1961 to a monetary judgment. As to defendant Florence Greene Sharp, plaintiff sought a monetary judgment in the sum of $123,072.97, together with interest, which principal sum was alleged to represent 'one-seventh of the value of the moneys and properties received by . . . (Florence Greene Sharp) from the Estate of Mary Greene Wiswall.' Plaintiff also sought an award of treble damages in the sum of $372,218.91 against defendant Florence Greene Sharp. By her motion plaintiff further sought to reduce the equitable decree as to defendant Charles Harrison Greene, in his capacity as trustee for defendants William Cornell Greene and Florence Greene Sharp, and as to defendant William Cornell Greene to a monetary judgment amounting to $81,504.93, together with interest, as against Charles Harrison Greene, as trustee, and $125,333.40, together with interest, as against William Cornell Greene, it being alleged that such sums represented one-seventh of the value of the moneys and properties respectively received by those defendants from the estate of Mary Greene Wiswall. Plaintiff also sought treble damages in the amount of $244,514.79 from defendant Charles Harrison Greene and in the amount of $376,000.20 from defendant William Cornell Greene.
At the hearing of the motion certain documentary evidence was introduced. The trial court made an 'Order on Judgment' which provided in pertinent part as follows:
'1. The Court finds in favor of the plaintiff and that the Judgment in this case shall be and is hereby reduced to the specific monetary sums hereinafter set forth with respect to the defendants named herein:
'a. In favor of plaintiff and against defendant FLORENCE GREENE SHARP, in the amount of $124,075.97 plus interest thereon at 7% Per annum from September 16, 1968 until paid;
'b. In favor of plaintiff and against defendant WILLIAM CORNELL GREENE, in the amount of $125,333.40 plus interest thereon at 7% Per annum from September 16, 1968, until paid;
'c. In favor of plaintiff and against defendant CHARLES HARRISON GREENE, as Trustee for WILLIAM CORNELL GREEN and FLORENCE GREENE SHARP, in the amount of $80,076.37 plus interest thereon at 7% Per annum from September 16, 1968, until paid.
Thereafter, request having been made therefor, the trial court filed findings of fact and conclusions of law which were in pertinent part as follows:
'1. Judgment in this case was entered in favor of plaintiff EVA GREENE DAY on February 9, 1961, was duly affirmed on appeal by the California Supreme Court, became final upon the filing of the remittitur with this Court, and is a valid and subsisting Judgment.
'2. Said Judgment provided, among other things, in paragraph 1 thereof, that plaintiff EVA GREENE DAY have and recover against defendants, including defendants FLORENCE GREENE SHARP, WILLIAM CORNELL GREENE and CHARLES HARRISON GREENE, a one-seventh interest in all moneys and properties in the entire residual estate of Mary Proctor Greene Wiswall, deceased, which each of said respective defendants, including defendants FLORENCE GREENE SHARP, WILLIAM CORNELL GREENE and CHARLES HARRISON GREENE 'has received or will receive, or became or will become entitled to receive, individually, or as executor or testamentary trustee, under the terms of the will of Mary Proctor Greene Wiswall, deceased, of November 10, 1954, or by reason or her death on November 27, 1955.'
'3. Said Judgment further, in paragraph 2 thereof, ordered the defendants, including defendants FLORENCE GREENE SHARP, WILLIAM CORNELL GREENE and CHARLES HARRISON GREENE, and each of them, to 'forthwith transfer and deliver to plaintiff one-seventh of all moneys and properties received to date by each of said respective defendants, individually, or as testamentary trustee under the terms of the will of said Mary Proctor Greene Wiswall of November 10, 1954, or by reason of her death, together with interest thereon at the rate of 7% Per annum on said moneys and on the reasonable value of said properties from the date of this Judgment until transferred and delivered to plaintiff.'
'4. Said Judgment further, in paragraph 3 thereof, ordered that the defendants, including defendant CHARLES HARRISON GREENE, as Trustee, 'shall distribute directly to plaintiff EVA GREENE DAY one-seventh of the residue of all moneys and properties of the estate of Mary Proctor Greene Wiswall, deceased, as of the date of her death on November 27, 1955, including all those heretofore particularly mentioned, not theretofore transferred and delivered to plaintiff.'
'5. Said Judgment further, in paragraph 4 thereof, ordered that defendants FLORENCE GREENE SHARP, WILLIAM CORNELL GREENE and CHARLES HARRISON GREENE, and each of them, 'shall promptly transfer and deliver to plaintiff upon receipt thereof one-seventh of all other and further moneys and properties in addition to those theretofore transferred and delivered or distributed to plaintiff, received by said respective defendants individually, or as testamentary trustee under the terms of the will of said Mary Proctor Greene Wiswall on November 10, 1954, or by reason of her death.'
'6. Said Judgment further, in paragraph 7 thereof, contained the provision that this Court 'shall, and hereby does, retain jurisdiction of the within numbered case 692,673 to make such other and further orders and decrees as it may deem necessary or proper to carry out the provisions of this judgment.'
'7. Defendant FLORENCE GREENE SHARP received moneys and properties having a value of $868,510.79 from the estate of said Mary Proctor Greene Wiswall or by reason of her death and one-seventh of said sum is $124,072.97 which sum became certain on September 16, 1968, and said defendant FLORENCE GREENE SHARP has not transferred to plaintiff any portion of said moneys or properties.
'8. Defendant CHARLES HARRISON GREENE as Trustee for defendants FLORENCE GREENE SHARP and WILLIAM CORNELL GREENE, received moneys and properties having a value of $560,534.59 from the estate of said Mary Proctor Greene Wiswall or by reason of her death and one-seventh of said sum is $80,076.37 which sum became certain on September 16, 1968, and said defendant CHARLES HARRISON GREENE has not transferred to plaintiff any portion of said moneys or properties.
Florence Greene Sharp was the only defendant who filed a notice of appeal from the 'Order on Judgment.'
At the outset we address ourselves to the question of the trial court's jurisdiction to render the order sought to be reviewed herein. (1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 286, p. 827.) In the case presently before this court the trial court in its judgment expressly retained jurisdiction 'to make such other and further orders and decrees...
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