Hustead v. Superior Court

• Decision Date: 18 December 1969
• Citation: 2 Cal.App.3d 780,83 Cal.Rptr. 26
• Parties: Clarence P. HUSTEAD, Petitioner, v. The SUPERIOR COURT of the State of California for the COUNTY OF CONTRA COSTA, Respondent, Thelma L. PATTERSON, Real Party in Interest. Civ. 26491.
• Court: California Court of Appeals Court of Appeals

Page 26

83 Cal.Rptr. 26

2 Cal.App.3d 780

Clarence P. HUSTEAD, Petitioner, v. The SUPERIOR COURT of the State of California for the COUNTY OF CONTRA COSTA, Respondent Thelma L. PATTERSON, Real Party in Interest.

Civ. 26491.

Court of Appeal, First District, Division 1, California.

Dec. 18, 1969.

William H. Hoogs, Berkeley, for petitioner.

Leonard S. Lurie, San Francisco, for real party in interest.

SIMS, Associate Justice.

By his petition for writs of mandate and prohibition, petitioner seeks (1) an order directing the respondent court to vacate its original order, made March 15th and signed and filed March 21, 1968, in supplementary proceedings in a divorce action between Russell A. Patterson and Thelma L. Patterson, which directed petitioner, as sublessee, to pay the monthly rentals accruing under his sublease which were payable to Mr. Patterson, as lessee and sublessor of the premises, to Mrs. Patterson; (2) an order directing the respondent court to recall and quash a writ of execution issued against petitioner in the Patterson action for the sum of $800, and levied upon his bank account shortly prior to December 2, 1968; (3) an order prohibiting the respondent court from ordering the issuance of any additional writs of execution; and (4) an order directing Mrs. Patterson, as real party in interest, to return to petitioner the moneys received by her pursuant to the levy under the writ of execution.

The petitioner is relieved of the prospective provisions of the order entered in March 1968, and from the effect of the writ of execution purportedly issued on that order. The question of restitution is unresolved because of an insufficient record of those proceedings.

The facts as they appear from the petition, the answer filed by real party in interest, and other papers filed in the proceedings are as follows: On January 2, 1962, Mr. Patterson leased the premises in question from the Ethel Patterson Trust, at a monthly rental of $600. On March 29, 1963, petitioner entered into a sublease of the premises from Patterson for a term expiring March 31, 1973, at a rental payable in installments of $800 on the first day of each month.

In 1964, Mrs. Patterson cross-complained in Mr. Patterson's action for divorce and secured an award for child support and alimony. In February 1968, after an execution issued against the property of Mr. Patterson was returned unsatisfied, Mrs. Patterson secured an order for the examination of petitioner as a debtor of Mr. Patterson, the judgment debtor. At a hearing on March 15, 1968, the court found that petitioner 'is indebted to (the judgment debtor) pursuant to the terms of a written lease agreement providing for monthly rentals in the sum of Eight Hundred Dollars ($800.00) per month from said (petitioner) to said (judgment debtor).' The court ordered, 'that (petitioner) make and deliver all future rental payments in the sum of Eight Hundred Dollars ($800.00) per month, to (the attorney for the judgment creditor) for the account of (the judgment debtor) to (the judgment creditor) for child support and alimony then due and payable until further order of court.'

Thereafter, through the month of October, petitioner paid the monthly rental as ordered. On October 30, 1968 he received a notice of assignment of lease, dated October 28, 1968, which advised him that Mr. Patterson, the sublessor, had assigned all of his right, title and interest in the lease to one Harry Chapman of Painesville, Ohio, and directed the petitioner to make all payments due and to become due under the terms of the lease to the assignee in care of a local attorney. An accompanying letter from the attorney demanded the rent payment due November 1, 1968. Thereupon, petitioner communicated with the interested parties and advised them that in the absence of their agreement it would be necessary to file an interpleader action. The prime lessor advised petitioner that if the $600 due under the prime lease was not paid, steps would be taken to terminate that lease and evict petitioner. ¹

Chapman and Patterson instructed petitioner to pay the $600 to the prime lessor, and to interplead the balance. Mrs. Patterson suggested that the entire $800 be interpleaded.

Petitioner paid $600 of the November rent to the prime lessor and on November 22, 1968 filed an interpleader action, deposited the $200 balance in court, and caused all parties, other than the nonresident Chapman to be served with copies of the summons and complaint. Mrs. Patterson secured the writ of execution which petitioner seeks to quash, and $800 was seized from petitioner's bank account by the sheriff.

On December 2, 1968, petitioner moved the trial court for an order recalling and quashing the writ of execution and for an order revoking the order directing petitioner to pay the monthly rental of $800 to Mrs. Patterson's attorney. On December 6, 1968, petitioner was served with a notice from the prime lessor to pay the December rent or vacate the premises. He thereupon paid the sum of $600 to the prime lessor, and interpleaded the $200 balance in the pending interpleader action. On December 24th, the prime lessor's motion to be dismissed from the interpleader action was granted. On the same day respondent court denied petitioner's motion to recall and quash the writ of execution. On January 22, 1969 petitioner commenced these proceedings, and on January 30, 1969, as evidenced by supplemental filings (see Finn v. Butler (1925) 195 Cal. 759, 765, 235 P. 992), the respondent court denied his motion to vacate the March 1968 order.

Petitioner contends that the order of March 15, 1968 is a void order because of its continuing nature; and if it was not void in its inception, it became a nullity with respect to the November 1968 rental because of the notice of assignment; and that the order for the issuance of a writ of execution against him was void because it was wholly unauthorized. Real party in interest asserts that the order of March 15, 1968, whether erroneous or not, was a judgment which became final upon the petitioner's failure to appeal, and that the court properly ordered execution to issue on that judgment.

An examination of these contentions in the light of the facts and applicable legal principles reveals that the respective rights and obligations of the parties lie between the respective extremes for which they contend, and indicates that petitioner is entitled to some of the relief which he seeks.

The Order of March 15, 1968

Reference to the declaration filed in support of the order, and the formal order signed and filed March 21, 1968, indicates that petitioner was ordered to appear in supplementary proceedings, pursuant to the provisions of section 717 of the Code of Civil Procedure, ² and that the order was purportedly made under the provisions of section 719 ³ of that code. ⁴ So far as appears from the record no attempt has been made to levy, seize and apply Mr. Patterson's leasehold interest in the property to the satisfaction of the obligations owed to his former wife. (See 33 C.J.S. Executions § 37, p. 170; 6 Am.Jur.2d, Attachment and Garnishment, § 107, p. 637; 19 Cal.Jur.2d, Executions, § 50, p. 703; and cf. Meacham v. Meacham (1968) 262 Cal.App.2d 248, 68 Cal.Rptr. 746 where the contract giving rise to installment payments was levied upon and sold to satisfy a judgment; see also McKenzie v. Hill (1908) 9 Cal.App. 78, 80, 98 P. 55.) He was not a party to the supplementary proceedings. So far as appears from the record he was free to alienate, forfeit, or otherwise dispose of that interest as he saw fit.

The order was erroneous insofar as it purported to order the petitioner, as garnishee, to pay over rental payments which would only accrue in the future. 'To attach tangible property, or garnishee a credit, it is essential that the property or credit exist.' (Early v. Town of Redwood City (1881) 57 Cal. 193, 195. See also Thomas v. Thomas (1961) 192 Cal.App.2d 771, 778, 13 Cal.Rptr. 872; Dawson v. Bank of America, etc. (1950) 100 Cal.App.2d 305, 309--310, 223 P.2d 280; and Bunnell v. Basich Bros. Const. Co. (1941) 43 Cal.App.2d 538, 540--541, 111 P.2d 358.)

The judgment creditor relies on principles recently reiterated in Meacham v. Meacham, supra, as follows: 'More recently it has been held, however, that 'While a 'debt which is uncertain and contingent in the sense that it may never become due and payable, is not subject to garnishment' (citations), it is now established in this state that a present right of action upon the obligation is not essential to a valid garnishment and that earlier statements or intimations to the contrary, as in Early v. Town of Redwood City, 57 Cal. 193, no longer square with the prevailing doctrine. (Citations.)' (Brunskill v. Stutman, 186 Cal.App.2d 97, 104, 8 Cal.Rptr. 910, 915.) It is further stated in Brunskill that 'Mere uncertainty in the amount of the debt at the time of the levy does not defeat the garnishment if the amount of the obligation is susceptible of measurement by facts then known, or by subsequent events.' (Supra, p. 104, 8 Cal.Rptr. p. 915.) Also cited in the same case is the following statement of the law: 'Where there is no contingency as to the garnishee's liability, the only contingency being as to the amount thereof, and where the amount of the liability is capable of definite ascertainment in the future, there is no such contingency as prevents garnishment of the claim, even though, it has been held, it may be that eventually it will be found that nothing is due. * * *' (P. 105, 8 Cal.Rptr. p. 916.)' (262 Cal.App.2d at p. 252, 68 Cal.Rptr. at p. 748.)

No California case has been found which deals with the question of whether installments of rent due in the future can be the subject of garnishment. It has been noted in another jurisdiction that the question will not generally arise because the judgment creditor can seize the judgment debtor's interest in...