Hatch v. Bank of America N. T. & S. A.

• Decision Date: 27 June 1960
• Citation: 182 Cal.App.2d 206,5 Cal.Rptr. 875
• Court: California Court of Appeals
• Parties: Eva Henrietta HATCH, as Executrix of the Estate of Clifford Hatch, Deceased, Plaintiff and Appellant, v. BANK OF AMERICAN N. T. & S. A. and Rodney Seifert, Defendants and Respondents. Civ. 19170.

Page 875

5 Cal.Rptr. 875

182 Cal.App.2d 206

Eva Henrietta HATCH, as Executrix of the Estate of Clifford Hatch, Deceased, Plaintiff and Appellant, v. BANK OF AMERICAN N. T. & S. A. and Rodney Seifert, Defendants and Respondents.

Civ. 19170.

District Court of Appeal, First District, Division 2, California.

June 27, 1960.

Rehearing Denied July 27, 1960.

Hearing Denied Aug. 24, 1960.

Spruance, Simonian & Pretzer, San Leandro, for appellant.

Samuel B. Stewart, H. H. Bechtel, J. R. Drumwright, San Francisco, for respondent Bank of America.

Willens, Boscoe & Short, Stockton, for respondents Siefert and Ivers.

KAUFMAN, Presiding Justice.

This is an appeal from a judgment sustaining the respondents' special defense of res judicata in an action to recover damages for the conversion of a truck and for the loss of operating revenues. Appellant contends that res judicata is not applicable here.

The appeal is on a settled statement of facts which reveals the following: on September 25, 1954, in the Superior Court of San Joaquin County, Clifford A. Hatch filed an action to quiet title to a Peterbilt Six Flat Rack Truck against Mel Ivers, individually, and doing business as Ivers Transportation Company and Ivers Transportation, Inc. The complaint alleges that Hatch was the owner of the truck and entitled to possession. On August 8, 1955, the truck was taken from the possession of Hatch by agents of the Bank of America (the legal owner of the vehicle). On September 22, 1955, plaintiff amended his complaint to include both respondents in the present action as defendants in that San Joaquin County action. On April 13, 1956, a judgment was entered in favor of Hatch as a secured creditor of Mel Ivers and pledgee of the truck. The judgment decreed that the claim of Hatch was superior to the claims of the defendants and that Hatch was entitled to immediate possession.

In November, 1956, Hatch filed this action in the Superior Court of Alameda County, for damages for the conversion of the truck and for the loss of operating revenues for the period of time during which the plaintiff was deprived of the use and benefit of the truck. Clifford Hatch died on November 17, 1957, and Eva Henrietta Hatch (appellant herein) as executrix of the estate of Clifford Hatch, was substituted as plaintiff. Subsequently, pursuant to a stipulation, the special defense of res judicata was severed from the other issues and tried. The trial court found that the damages sought had accrued at the time of the filing of the San Joaquin County action in which the right to possession of the vehicle was litigated, and concluded that the relief sought in this action was barred by the judgment in the prior action.

In determining the validity of a plea of res judicata, three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892. Here, there is no question that the prior judgment was final on the merits and between the same parties. Appellant argues, however, that there are separate and distinct causes of action; one to quiet title to the truck and the other for damages for the wrongful retention of the vehicle.

There is no merit in the appellant's argument. The record before us indicates that the judgment in the San Joaquin County action decreed that the plaintiff had the right to immediate possession. 'It is the settled rule that whatever issue was actually and necessarily included in a former judgment will be deemed to have been adjudged thereby.' Strickland v. Calancorporation, Ltd., 156 Cal.App.2d 488, 495, 319 P.2d 737, 741.

On its face, the judgment indicates that the issue of possession was expressly determined in that action. Appellant argues that the court had no jurisdiction to determine the issue of posession. Appellant's argument is based on the following reasoning from Crowther v. Metalite Mfg. Co., 133 Cal.App. 452, 458, 24 P.2d 551, 553:

'* * * In California, where the ordinary action is brought to quiet title to real property under the provisions of section 738 of the Code of Civil Procedure, the plaintiff is entitled to a judgment for possession of the property, but jurisdiction to thus act is derived from section 380 of the Code of Civil Procedure. Polack v. Gurnee, 66 Cal. 266, 5 P. 229, 610. When section 738 of the Code of Civil Procedure was amended so as to place personal property in the same category with real property in the matter of quieting title, the Legislature apparently overlooked the amendment of section 380 of the Code of Civil Procedure so as to give the court the right to adjudge possession in respect to personal property in such an action. If the right to possession is expressly made an issue in an action to quiet title, of course the authority to adjudicate that issue would be unquestioned.' [Emphasis supplied.]

Appellant's argument is refuted by her own authority quoted. All of the authorities cited by the appellant relate to situations where the matter of possession was not made an issue. See for example, Baar v. Smith, 201 Cal. 87, 255 P. 827; Denning v. Green, 119 Cal.App. 102, 6 P.2d 317. While in some instances, the question of title is not necessarily resolved, this is not such a case. See Zaccaria v. Bank of America, 164 Cal.App.2d 715, 331 P.2d 198.

We think Van Horne v. Treadwell, 164 Cal. 620, 130 P. 5, is applicable here. In that case, the plaintiff pledged 3,500 shares of stock to secure repayment of a note. When the...