Minardi v. Collopy

• Decision Date: 05 November 1957
• Citation: 316 P.2d 952,49 Cal.2d 348
• Court: California Supreme Court
• Parties: T. A. MINARDI, Plaintiff-Respondent-Appellant, v. E. A. COLLOPY and Stella Collopy, Defendants. A. L. Castle, Inc., a corporation, Third Party Claimant, Appellant and Respondent, John L. Stevenson, Third Party, Claimant and Respondent. S. F. 19458.

Page 952

316 P.2d 952

49 Cal.2d 348

T. A. MINARDI, Plaintiff-Respondent-Appellant, v. E. A. COLLOPY and Stella Collopy, Defendants A. L. Castle, Inc., a corporation, Third Party Claimant, Appellant and Respondent John L. Stevenson, Third Party, Claimant and Respondent.

S. F. 19458.

Supreme Court of California, In Bank.

Nov. 5, 1957.

As Modified on Denial of Rehearing Dec. 4, 1957.

Rankin, Oneal, Luckhardt, Center & Hall and J. E. Longinotti, San Jose, for plaintiff and appellant.

Hession, Robb & Creedon, Roos E. Hamlin, Jr., and David W. Brown, San Mateo, for third party claimant and appellant.

LeRoy A. Broun, Fremont, for third party claimant and respondent.

SHENK, Justice.

These are appeals by the plaintiff and the third party claimant John L. Stevenson in the one instance, and by the third party claimant A. L. Castle, Inc., in the other, from orders made during proceedings pursuant to the garnishment of funds owing to the defendants from the sale of a bean crop grown by them.

The plaintiff commenced an action on a promissory note for $11,870.43 and for an accounting of one-half the proceeds from the sale of the bean crop allegedly assigned to him by the defendants. On August 3, 1954, he cause a garnishment to be levied on the funds then due from the crop sale. On August 25, the third party claimant, John L. Stevenson, fild with the sheriff his claim on funds which might come into the sheriff's possession pursuant to the garnishment, claiming under an alleged crop mortgage and assignment from the defendants. Thereafter the Castle corporation filed its claim with the sheriff based on an alleged first assignment from the defendants.

Judgment was entered for the plaintiff against the defendants and on levy of execution the garnishee delivered to the sheriff the sum of $4,377.84 due on the sale of the crop and in its possession. By argeement of the plaintiff and the third party claimants a hearing on the question of title to the fund was set for December 20. Prior to that time, however, counsel for Stevenson, by letter to the court, requested that the matter be placed off calendar on the ground that the third party claims had been filed at a time when no funds were in the hands of the sheriff and were therefore premature. An ex parte minute order was made on December 14 placing the matter off calendar. On or about that same day Stevenson filed a new third party claim, as did Castle on the 17th of December. Both claims were similar to their predecessors except that the cash credits were now described as in the hands of the sheriff.

On the 20th of December the plaintiff, who had no previous notice that the matter had been ordered off calendar, appeared and urged that it be heard. The court consented to hear him and granted his motion to dismiss the petition of third party claimants, the minute order reading: 'December 20, 1954, Cause before the Court on oral motion of Mr. J. E. Longinotti, Esq., counsel the motion to dismiss the petition of Third Party Claim is presented and submitted to the Court. Whereupon the Court makes its order dismissing the Petition for Third Party Claim.' However, the written order prepared by the plaintiffs' attorney and signed by the judge in addition to ordering a dismissal 'Further Ordered that the Third Party Claim filed by the said John L. Stevenson on August 25, 1954, and the Third Party Claim filed by A. L. Castle, Inc., on September 24, 1954, be and the same are hereby adjudged to be of no force and effect and that said third part claimants were not entitled to possession of the personal property involved in this proceeding at the time the same was levied upon * * *.'

On December 22, Stevenson again filed a petition to determine title alleging the subsequent filing of the third party claims by himself and Castle. The matter was set for hearing on January 11, 1955. The plaintiff moved to strike the petition, asserting that the matter had been determined on December 20. The motion to strike was granted on January 11, the court indicating that the third party claimants had not sought the proper remedy. Thereafter Stevenson reached an agreement with the plaintiff as to sharing the fund received from the garnishee and Stevenson filed a dismissal of his second petition to determine title. Castle did not join in the agreement nor in the dismissal.

On April 6, 1955, Castle filed a notice of motion to correct the written order of December 20 to conform to the minute order of that date. After a hearing the court on May 3 entered an order amending the prior written order to so conform. The plaintiff appeals from the order of May 3. Castle then filed a notice of motion in form to correct the order of January 11, but in effect for an order to grant a hearing on the merits of the title contest. Castle urges that a hearing should be had because, it contends, the court in striking the petition to determine title on January 11 was influenced by its prior which indicated that the third part claims were not meritorious, whereas the record had since been corrected to show that no such determination had been made. The court by minuted order of June 16 denied the motion to set aside, reciting only that the petitioner Stevenson had abandoned the petition for hearing to determine title. The subsequent written order of June 17 does not state the ground for denial. Castle appeals from the orders of June 16 and 17.

The question as to both the appeal by the plaintiff and the appeal by Castle is whether the court in making its order of December 20 in the one case and its order of January 11 in the other acted inadvertently rather than in the exercise of a judicial discretion. It appears that ...