Mattern v. Carberry

• Decision Date: 22 November 1960
• Citation: 186 Cal.App.2d 570,9 Cal.Rptr. 137
• Court: California Court of Appeals Court of Appeals
• Parties: Ida E. MATTERN, an unmarrled woman, Plaintiff and Respondent, v. Matthew C. CARBERRY, etc., et al., Defendants, Edward F. Pierce and Betty Z. Pierce et al., Defendants and Appellants. Civ. 19198.

Page 137

9 Cal.Rptr. 137

186 Cal.App.2d 570

Ida E. MATTERN, an unmarrled woman, Plaintiff and Respondent, v. Matthew C. CARBERRY, etc., et al., Defendants Edward F. Pierce and Betty Z. Pierce et al., Defendants and Appellants.

Civ. 19198.

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

Nov. 22, 1960.

Hearing Denied Jan. 18, 1961.

W. O. Weissich, San Rafael, for appellants.

Joseph A. Brown, San Francisco, for respondent.

SHOEMAKER, Justice.

Defendants and appellants Edward Pierce, Betty Pierce and Matthew Carberry appeal from a default judgment enjoining an execution sale of plaintiff and respondent Ida Matter's real property.

The facts are without dispute. Respondent took title to the property in question by a grant deed from Bertie Parkhurst executed April 1, 1950 and recorded on April 24, 1950. On July 6, 1950 the appellants Pierce brought suit in the Superior Court of Marin County against Parkhurst on an indebtedness that had existed for some time prior to April 1, 1950 and were awarded a judgment on January 31, 1952 in said action. The respondent was not a party to that action and the appellants did not have a judgment against her.

The appellants Pierce also filed suit against respondent and Parkhurst in the San Francisco Superior Court on January 10, 1952 to set aside the conveyance as fraudulent. That action was dismissed in September 1957 by the court for failure to bring it to trial within five years after filing. Code Civ.Proc. § 583.

The defendant Carberry, Sheriff of the City & County of San Francisco, acting under a writ of execution issued out of the Superior Court of Marin County, levied execution upon respondent's San Francisco real property on August 15, 1957. The respondent filed the present action to enjoin the execution sale on August 28, 1957. The appellants' answer, which sets forth the defense of fraudulent conveyance was stricken by the court on the ground that dismissal of their prior suit was res judicata on the issue, and the default judgment, the subject of this appeal, was thereafter entered in July 1959.

A creditor may take action against a fraudulent conveyance by suing to have it set aside or he can disregard the conveyance and levy execution upon the property. Civ.Code § 3439.09. Such remedies are alternatively available to a defrauded creditor.

The sole issue raised on appeal, the availability of levying execution on respondent's property, depends upon whether the dismissal or appellants' suit to set aside the conveyance for fraud for lack of prosecution was res judicata upon the question of fraudulent conveyance.

It is established California law that a dismissal for want of prosecution is not on the merits and therefore does not operates as res judicata to a subsequent proceeding. Gonsalves v. Bank of America, 1940, 16 Cal.2d 169, 172, 105 P.2d 118; Taliaferro v. Riddle, 1959, 167 Cal.App.2d 567, 569, 334 P.2d 950; Johnston Realty Corp. v. Showalter, 1926, 80 Cal.App. 176, 180, 250 P. 289, involving dismissals pursuant to Code of Civil Procedure, § 581a for failure to serve defendants within three years of filing; and Lord v. Garland, 1946, 27 Cal.2d 840, 850, 168 P.2d 5; Superior Oil Co. v. Superior Court, 1936, 6 Cal.2d 113, 117, 56 P.2d 950, involving dismissals pursuant to Code Civ.Proc § 583 for failure to bring an action to trial within five years of filing.

The respondent argues that Code of Civil Procedure, § 581d, which provides that properly entered judgments of dismissal shall be effective for all purposes, makes this judgment a final one and constitutes res judicata; otherwise the section would be meaningless. We do not agree. Respondent's position can only be based on the conclusion that section 581d added something new to the law. As was pointed out in Lavine v. Jessup, 1957, 48 Cal.2d 611, 615, 311 P.2d 8, sections 581c and 581d were subdivisions of section 581 and were removed therefrom and given their own code section numbers in a move to clarify the law. See Gwinn v. Ryan, 1949, 33 Cal.2d 436, 438, 202 P.2d 51.

In Ross v. O'Brien, 1934, 1 Cal.App.2d 496, 36 P.2d 1108, the court observed that until the subject matter of this section 581d was incorporated in former section 581, the entry of an order of dismissal in the minutes of the court was ineffective for any purpose and that formal entry of judgment was required.

Section 581d defines when an order of dismissal is effective (34 St.Bar Journal 637 [1959]), and a properly entered order of dismissal by the court constitutes an effective judgment from which an appeal may properly be taken. Herrscher v. Herrscher, 1953, 41 Cal.2d 300, 303, 259 P.2d 901. It is our opinion that when the section says, 'Such orders when so entered shall constitute judgments and be effective for all purposes,' it gives orders of dismissal equality with other judgments but no greater impact. One requisite for res judicata for any judgment...