Minardi v. Collopy

• Decision Date: 29 March 1957
• Citation: 308 P.2d 744
• Parties: T. A. MINARDI, Plaintiff, Respondent and 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.* Civ. 17086.
• Court: California Court of Appeals Court of Appeals

Page 744

308 P.2d 744

T. A. MINARDI, Plaintiff, Respondent and 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.*

Civ. 17086.

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

March 29, 1957.

Rehearing Denied April 26, 1957.

Hearing Granted May 24, 1957.

Hession, Robb & Creedon, San Mateo, Ross E. Hamlin, Jr., David W. Brown, San Mateo, of counsel, for appellant A. L. Castle, Inc.

Rankin, Oneal, Luckhardt, Center & Hall, J. E. Longinotti, San Jose, for appellant and respondent T. A. Minardi.

LeRoy A. Broun, Centerville, for respondent John L. Stevenson.

PER CURIAM.

These are cross-appeals from two orders relating to certain third party claims filed respectively by John L. Stevenson, hereinafter called Stevenson, and A. L. Castle, Inc., a corporation, hereinafter called Castle, after plaintiff had caused the Sheriff of Santa Clara County to levy an attachment or garnishment of all funds belonging or due to defendant from Frostcraft Packing Company, hereinafter called Frostcraft, the purchaser of a bean crop grown by defendants. The appellants are plaintiff and Castle. Stevenson, having reached a settlement with plaintiff, is not a party to the appeal. The procedural facts are complicated but substantially undisputed.

The main action was in two counts, one on a promissory note in the amount of $11,870.43, the other for an accounting of one-half of the proceeds of the sale of the bean crop grown by defendants and sold to Frostcraft, which one-half had allegedly been assigned by defendants to plaintiff by a written contract of October 29, 1953. The attachment was levied on August 3, 1954. On August 25th Stevenson filed with the Sheriff his third party claim to the cash credits attached in the sum of $4,377.84 based on an alleged crop mortgage and an assignment of the proceeds of the sale of the bean crop by defendants to Stevenson, notice of which was given to Frostcraft. On or about September 23, 1954 Castle filed with the Sheriff his third party claim to all sums which would come into the Sheriff's possession from the garnished debts or credits in the sum of $4,377.84, based on a partial assignment of the proceeds of the sale of said bean crop by defendants to Castle on March 19, 1954, guaranteed to be the first assignment and accepted as such by Frostcraft on April 19, 1954. Within the statutory period after the filing of each of said third party claims plaintiff filed the required undertaking. On November 10, 1954, Stevenson filed a petition to determine title, stating the filing of its third party claim on August 25, and of the one of Castle's on September 23rd and praying to set a day for the hearing. On the same day the court made an order reciting the garnishment and the two third party claims and setting the hearing of all parties interested for December 9, 1954. On November 24, 1954 judgment for plaintiff in the main action was entered for $12,334.36 and attorney's fees. On December 1, 1954 plaintiff levied execution on the garnished assets and Frostcraft delivered to the Sheriff the sum of $4,377.84. The hearing set for December 9th was by agreement of the parties continued to December 14th and again to December 20, 1954. Pursuant to a letter of Stevenson's counsel requesting that the matter be placed off calendar on the ground that the third party claims of Stevenson and Castle had been prematurely filed at a time when no funds were in the hands of the Sheriff, a minute entry was made on December 14th, placing the third party claims off calendar. Castle received notice of this fact, plaintiff does not seem to have received notice. On or about the same day, December 14th, Stevenson filed a new third party claim with the Sheriff, similar to the first one except that the 'cash credits' were now described as being held by the Sheriff. On or about December 17th Castle filed a new third party claim with the Sheriff similar to the first one except that the amount of $4,337.84 was described as now in the possession of the Sheriff. When on December 20, 1954, plaintiff and his attorney appeared before the court, Judge Del Mutolo presiding, for the agreed hearing, the Clerk informed them that the matter was placed off calendar pursuant to the letter received from Stevenson's attorney. Although the other parties were not represented, counsel for plaintiff urged that he had no knowledge of the request to place the matter off calendar, that the parties had stipulated to a hearing at that time, and that the hearing should be had. When the court consented to hear him he made an oral motion to dismiss the petition of third party claim, which the court granted. The minute entry reads: 'December 20, 1954 Cause before the court on oral motion of Mr. J. E. Loginotti, Esq., counsel, the motion to dismiss the petition of Third Party Claim is presented and submitted to the Court. Whereupon the court made its order dismissing the Petition for Third Party Claim.' On the same day the court signed a written order prepared by plaintiff's counsel, which recited that the petition came regularly on for hearing, the request made to place it off calendar with the ground given therefor, and the fact that the claimant did not appear and present evidence, which not only ordered the petition of Stevenson dismissed but also adjudged that the claims were of no force and effect and that claimants were not entitled to the property involved.

On December 22nd Stevenson again filed a petition for hearing to determine title, now alleging that the funds were in the hands of the Sheriff, and the filing of his own (2nd) third party claim on December 13th and also the filing of a claim by Castle. The same day Judge Del Mutolo made an order reciting the funds held in possession by the Sheriff and the two third party claims and setting the hearing of all parties claiming an interest for January 11, 1955. On December 27, 1954, the Sheriff filed the second claims of both Stevenson and Castle with the court. On the same date plaintiff moved to strike said petition of Stevenson and the two third party claims to which it related, asserting that the invalidity of the claims of Stevenson and Castle had been decided by the decision of December 20th and that there was no authority for relitigating the matter in the same action. On January 11, 1955 the court, Judge Avilla presiding, granted the motion to strike. At the end of the hearing Judge Avilla stated: 'Without passing on the merits of your position or your position with regard to what the Court has before it, and what the Court should have done at that time, I don't think this is your proper remedy. I certainly am not going to set aside the judgment of another department or court. I think you may have a remedy, but I don't think this is it.'

On or about January 16, 1955 the Sheriff delivered to plaintiff the funds obtained from Frostcraft. Plaintiff offered to divide the funds between himself and the two claimants in proportion to the claims of each against the defendants. Stevenson accepted said offer and was paid his proportionate share, but Castle rejected it and instituted a separate ordinary action against Frostcraft on the guaranteed assignment and acceptance on which its third party claims had been based. In said action, which is not directly involved in this appeal, the answer of Frostcraft set up a defense of res judicata on the basis of the above orders. Thereupon on April 6, 1955, Castle filed a notice of motion to correct the judgment of December 20th to conform to decision. After a hearing before Judge Del Mutolo on April 15th, in which counsel for plaintiff conceded the possibility that the written order might be considered a decision on the merits and that that might be more than the court had intended, the court on May 3, 1955 filed an order amending the written order of December 20, 1954 so as to read like the minute order of that day only, thereby eliminating any decision on the merits.

On May 6, 1955, Stevenson filed a dismissal of his petition of December 22, 1955 (the second petition for a hearing to determine title). On May 20th Castle filed a notice of motion, in form to correct the order of January 11, 1955, striking the second petition for hearing to determine title and third party claims, but actually to vacate said order and grant a hearing on the merits of the title contest. Castle urged that the order of January 11th was based on an incorrect statement of the decision of Judge Del Mutolo of December 20, 1954 then contained in the record which had now been corrected. Hearing was set for June 10, 1955. On June 9, 1955 plaintiff filed a notice of appeal from the order of Judge Del Mutolo of May 3, 1955 correcting his order of December 20, 1954. At the hearing of June 10th before Judge Avilla plaintiff opposed the motion of Castle because Stevenson's dismissal of his petition to determine title had terminated the proceedings, because of his own appeal from the correcting order of Judge Del Mutolo, because of laches of Castle, and because the order of January 11th had not been caused by clerical mistake which could be corrected by the court. The court by minute order of June 16th denied the motion to set aside, reciting only that petitioner Stevenson had abandoned the ...