Murray v. Superior Court In and For City and County of San Francisco
| Decision Date | 27 May 1955 |
| Citation | 284 P.2d 1,44 Cal.2d 611 |
| Court | California Supreme Court |
| Parties | Harold Donald MURRAY, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR CITY AND COUNTY OF SAN FRANCISO, and Honorable Milton D. Sapiro, and Honorable Harry J. Neubarth, as Judges thereof, Respondents. Donald N. Uthus, Real Party in Interest. S. F. 19217. |
Frank J. Perry and George Olshausen, San Francisco, for petitioner.
No appearance for respondents.
Dan L. Garrett, Jr., San Francisco, for real party in interest.
Harold Donald Murray, petitioner, seeks by writ of certiorari to review the lawfulness of an order of civil arrest issued by respondent court on August 12, 1954. Respondent court denied a motion to quash said order on August 16, 1954, and this petition followed.
Donald N. Uthus, real party in interest, filed an action against Murray on August 12, 1954, seeking to recover various amounts of money totaling $10,124.39 allegedly loaned by Uthus to Murray at his instance and request and which he had promised but failed and refused to repay. On the same day, Uthus filed his affidavit and that of William Stelter on an application for an order of civil arrest of Murray. The order was issued by the Superior Court of the City and County of San Francisco and directed that Harold Donald Murray be arrested and held for bail in the sum of $10,124.39. The order recited that a surety company bond in the sum of $2,500 had been previously filed in accord with the provisions of section 482 of the Code of Civil Procedure.
On August 16, 1954, petitioner Murray, having been released after posting bail in the sum specified, moved the court to quash the order for civil arrest and to exonerate the bail that had been posted. The petitioner's motion was denied on August 16, 1954.
Subdivision (1) of section 479 of the Code of Civil Procedure permits civil arrests in an action for the recovery of money on a cause of action arising upon contract express or implied '* * * when the defendant is about to depart from the State with intent to defraud his creditors'; subdivision (5) of the same section permits such arrests 'When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.'
Sections 480 through 504, Code of Civil Procedure, provide the procedure and requirements to be met when an order for civil arrest is sought and made. So far as is here pertinent, section 480 provides that the order must be obtained from a judge of the court in which the action is brought; section 481 provides that the plaintiff, or some other person, must make it appear to the judge, by affidavit
It is contended by petitioner here that the complaint and affidavits upon which the order was issued were insufficient to authorize the order to issue and that therefore the order is void because it was beyond the jurisdiction of respondent court. It is argued that the affidavits fail to show that Uthus had a cause of action against petitioner; that the affidavits failed to show that petitioner removed or disposed of his property, or was about to do so, with intent to defraud his creditors; that the affidavits failed to show that petitioner was about to depart from the state with the intent to defraud his creditors; that the affidavits include statements made on information and belief without stating the facts on which the information and belief were based.
The affidavit of Donald N. Uthus, notarized on August 6, 1954, and filed on August 12, 1954, sets forth the following information:
'That affiant at all times mentioned herein has been, and now is, the owner and operator of an export-import business in the City of Washington, D. C.; and
'That during the month of September, 1952, affiant hired and employed the defendant Harry Donald Murray to work for affiant on a commission basis, and affiant agreed with said Harry Donald Murray that affiant would loan to him such sums of money as said defendant needed for living and travel expenses during the time required for defendant for establish himself in the business. It was agreed that affiant was entitled to reimburse himself for such loans out of commissions earned by said defendant; and
'That beginning on September 15, 1952, and continuing to and including December 30, 1953, affiant loaned to defendant as and for his living expenses and travel expenses, the sum of $10,124.39, over and above all off-sets to be credited against said loans on account of commissioners earned by said defendant.
'Prior to defendant's employment with affiant, defendant and his wife had resided in the State of Virginia, and defendant had owned the family residence therein. During the month of May, 1954, defendant sold said home, and informed affiant that defendant received approximately $40,000.00, net, from the sale of said home. At or about said time, defendant booked passage upon the S.S. President Monroe, a ship owned and operated by the American President Lines, for himself and his wife, to depart from the City and County of San Francisco, State of California, on August 17, 1954, for a round-the-world trip, which said trip is due to return to the City of New York, State of New York, during the month of October, 1954; and
'That affiant is represented by Byron N. Scott, Esquire, as affiant's legal counsel, in Washington, D. C., and that at or about the time (of) the sale of defendant's said family residence, said counsel, at affiant's request, conferred with defendant with regard to an accounting for, and repayment of, monies loaned to defendant by affiant. On said occasions, defendant stated that he could not discuss the matter at that time, but that he would call said counsel at an early date and discuss the matter. Defendant has failed and refused to discuss the matter further with said counsel, and has left Washington, D. C., and the State of Virginia, as hereinafter described; and
'Following the sale of said family residence, affiant demanded of defendant that he make payment on account of said loans and defendant at said time stated to affiant that he would see what he could do. During the next meeting between affiant and defendant, which occurred during late June or early July, 1954, affiant again demanded payment on account of said loans, and on said occasion, defendant informed affiant that defendant had transferred all of his funds to his wife's name and that he was therefore unable to pay affiant; and
'That during the month of June and to and including July 9, 1954, defendant's visits to affiant's offices became very infrequent, and were customarily made when affiant was absent therefrom. On or about July 7, 1954, affiant questioned defendant as to his plans, and on said occasion, defendant stated to affiant that so far as he knew, he would return to Washington, D. C., from his round-the-world trip and would pick up where he left off with regard to his employment with affiant; and that he would leave Washington, D. C., on July 15th, 1954, to drive to the City and County of San Francisco, State of California, in order to arrive in time to sell his automobile prior to embarking upon the S.S. President Monroe on August 17, 1954. During said conference of July 7, 1954, affiant advised defendant that it was urgent that a discussion be held with regard to an accounting for, and repayment of, said loans to defendant, and defendant agreed that he would meet with affiant on the following day, July 8, 1954, to settle the matter. Defendant, however, did not appear for said meeting, and affiant instructed his counsel, Byron N. Scott, Esquire, to contact defendant. Said counsel tried without success to contact defendant, and July 9, 1954, affiant found a note in defendant's handwriting addressed to affiant which had been left at affiant's offices sometime after the close of business on July 8, 1954, which read as follows:
Don'
'That prior to this time, affiant at no time was advised, or had any indication that defendant did not intend to return to his said employment with affiant at the termination of his trip; and affiant has been unable to locate or contact defendant since that time; and
'That defendant has made application to the American President Lines to interrupt his said round-the-world trip at an Italian Port unknown to affiant, to permit himself and wife to travel in Europe for an indefinite period of time; and
'That prior hereto, affiant has filed suit and said suit is now pending against defendant in the Superior Court, in and for the County of San Francisco, State of California, for the recovery of said sum of $10,124.39, and a copy of said complaint on file herein is attached hereto, and made a part hereof; and that all the allegations of said complaint are true; and
'That based...
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