Stowe v. Matson

• Decision Date: 17 November 1949
• Citation: 94 Cal.App.2d 678,211 P.2d 591
• Court: California Court of Appeals Court of Appeals
• Parties: STOWE v. MATSON et al. Civ. 7707.

Page 591

211 P.2d 591

94 Cal.App.2d 678

STOWE v. MATSON et al.

Civ. 7707.

District Court of Appeal, Third District, California.

Nov. 17, 1949.

Rehearing Denied Dec. 16, 1949.

Hearing Denied Jan. 12, 1950.

Mazzera, Snyder & DeMartini, Stockton, for appellant.

Chas. H. Epperson, Stockton, for respondents.

THOMPSON, Justice.

In this suit against the sureties on an undertaking given to release an attachment, under Sections 554, 555, Code of Civil Procedure, the plaintiff has appealed from a judgment in favor of the defendants, which was rendered on the ground that the attachment was absolutely void and that the bond was therefore executed without consideration, and created no liability against the sureties. This appeal was heard upon a written stipulation of facts.

The original action was a suit between copartners for dissolution of the partnership and for an accounting. The chief question to be determined on this appeal is whether the attachment and bond for release thereof were void ab initio, or merely voidable. The pleadings, findings, judgment and entire record disclose the fact that the trial court was without jurisdiction to issue the attachment and that it was therefore unauthorized and absolutely void.

The plaintiff and A. G. Jones were engaged as partners in a manufacturing business in Stockton. Plaintiff brought suit to terminate the copartnership and for an accounting. The complaint was couched in two counts. The second count merely alleges that defendant in that suit, Jones, became indebted to plaintiff for merchandise received and for money due and owing. Nothing is alleged in that count to bring it within the exception to the general rule that one partner may not maintain an action in assumpsit against his copartner for property belonging to the partnership until after the copartnership is dissolved and an accounting is had. Clearly, the second count refers only to partnership property, and not to any claim independent thereof. The affidavit for attachment merely averred that the defendant, Jones, became indebted to plaintiff, without stating which count was relied upon, 'for goods, wares and merchandise belonging to the plaintiff and taken and used * * * and for money due and owing from defendant to plaintiff.' A bill of particulars, with relation to the second count, was demanded by the defendant and supplied. It definitely shows that all plaintiff claimed in that action was 'An undivided one-half interest in the assets of' the copartnership business. The court adopted findings that 'defendant has applied monies, receipts, proceeds and has used the assets of said copartnership business for his own purpose without the permission or consent of plaintiff,' and that plaintiff is entitled to receive from the defendant, Jones, $3,879.67, 'which is an amount equal to the value of his interest in the dissolved co-partnership' business. (Italics added.) Judgment was rendered accordingly. No findings were adopted nor was judgment rendered on the second count.

In the present action against the sureties on the bond, with all pleadings, proceedings and records of the attachment suit before it, the court adopted findings to the effect that 'at no time did any attachment issue based upon plaintiff's cause of action for dissolution of said partnership; that it is true that at no time was any judgment recovered by plaintiff on plaintiff's second cause of action against A. G. Jones,' and that 'said bond to release attachment was wholly without consideration and void.' It is apparent that if more definite findings had been adopted, they would necessarily have been adverse to the plaintiff. Judgment upon said findings was accordingly rendered that plaintiff take nothing by that action. From that judgment this appeal was perfected.

In a suit for dissolution of partnership and for an accounting, the adding to the complaint of a separate count in assumpsit, without alleging that it is based on claims independent of the interests in the partnership property, where the pleadings and records disclose the fact that the only claims involved are those which affect the partnership property, does not change the nature of the action or authorize the issuance of an attachment. Stone v. Superior Court, 214 Cal. 272, 4 P.2d 777, 77 A.L.R. 743; San Francisco Iron & Metal Company v. Abraham, 211 Cal. 552, 296 P. 82; Powers v. Freeland, 114 Cal.App. 146, 299 P. 736. In the Stone case, supra, the court said, 214 Cal. at page 274, 4 P.2d at page 778: 'The fact that the plaintiff's complaint * * * contained two counts, and that the second count therein was in the form of a common count for money had and received, cannot be held to change the situation or to entitle the plaintiff to the issuance of a writ of attachment in said action, since her cause of action is admittedly the same in each count, and is founded upon the facts set forth in detail in the first count of her complaint, from which it clearly appears that her only cause of action is one founded upon the defendants' alleged fraud and deceit.'

Quoting with approval from the San Francisco Iron & Metal Co. case, the court further said in the Stone case:

'The case of San Francisco Iron & Metal Co. v. Abraham et al., 211 Cal. 552, 296 P. 82, would seem to be precisely in point as applied to the above situation. The plaintiff's complaint in that action was in two counts. The first count specifically pleaded a cause of action based upon fraud and deceit. The second count pleaded a cause of action for moneys had and received. The defendants applied for and received an order discharging an attachment, which the plaintiff had caused to be issued. The plaintiff appealed from said order, but without avail. This court affirmed said order upon the authority of the case of Hallidie v. Enginger, supra [175 Cal. 505, 166 P. 1], and upon the foregoing line of authorities, upon which that decision was based.

'The fact that the plaintiff in the Abraham Case did not seek to rescind the contract alleged to have been fraudulently obtained is an immaterial circumstance not affecting the cause of action upon which the plaintiff sought to recover in two counts, but which, as the court aptly pointed out, were but different methods of pleading one transaction.'

In the Stone case, the Abraham case and the Powers case, supra, under similar circumstances it was held that the mere pleading of an additional common count will not have the effect of changing the principal cause of action to which the second count apparently applies, nor will it authorize the issuance of an attachment which would otherwise be illegal. The legality of the attachment must be determined from the pleadings, proceedings and entire record in the attachment suit to ascertain therefrom what, in fact, the real grievance is for which relief is sought. As the Supreme Court said in the Abraham case [211 Cal. 552, 296 P. 83]: 'The question is not what the plaintiff has pleaded, but what in truth and in fact is its grievance.' (Italics added.)

We conclude that the addition of count two in the original action did not change the cause of action from a suit for dissolution of partnership and an accounting to one based on contract, and that the second count did not confer jurisdiction on the court to issue the attachment.

The suit for dissolution of partnership and for an accounting did not authorize the issuance of an attachment. In 4 American Jurisprudence, page 621, section 105, which is supported by reputable authorities, it is said: 'An attachment cannot be sued out by one partner against another in a suit involving partnership transactions as to which there has been no settlement and accounting.'

A suit for dissolution of partnership and for an accounting is equitable in its nature. A fiduciary relationship exists between the copartners. As is said in the text of 20 California Jurisprudence, section 35, at page 718: 'The claim of one partner is, strictly speaking, merely equitable, as it can be enforced only through an equitable action for an accounting.' Commercial Bank of Los Angeles v. Mitchell, 58 Cal. 42; Hooper v. Barranti, 81 Cal.App.2d 570, 578, 184 P.2d 688; 47 C.J., sec. 250, page 803. The authorities appear to be uniform to the effect that one partner may not maintain a suit in assumpsit or at law, for claims growing out of the partnership transactions until after dissolution of the partnership and an accounting has been had. Dukes v. Kellogg, 127 Cal. 563, 60 P. 44; Cunningham v. deMordaigle, 82 Cal.App.2d 620, 186 P.2d 423; Johnstone v. Morris, 210 Cal. 580, 583, 292 P. 970; Mosher v. Helfend, 7 Cal.App.2d 48, 51, 44 P.2d 1050; 20 Cal.Jur. 759, sec. 70; 47 C.J. 802, sec. 250; 40 Am.Jur. 449, sec. 460. We conclude that the attachment in the action for dissolution of partnership and for an accounting was unauthorized and void ab initio. Since the attachment was void, it follows that the undertaking which was executed in lieu of the lien created thereby was without consideration and also void.

An attachment is an extraordinary and summary proceeding in rem. It is purely statutory. It creates special and conditional liens. C.C.P., sec. 537. No right or title in the property may be acquired except in strict compliance with the statutes. Anaheim National Bank v. Kraemer, 120 Cal.App. 63, 7 P.2d 765; 7 C.J.S. Attachment, § 2, page 186. The defendant's undertaking given to release the attachment is in lieu of the lien created thereby. C.C.P., sec. 554. If the attachment is not authorized by statute, the court is without jurisdiction to issue it. An attachment which is issued without jurisdiction or authority of statute is void ab initio. When the complaint affirmatively shows that the action is not founded on contract or that the plaintiff is not entitled to an attachment, the court is without authority to issue the writ. An attachment may not issue in an action founded on tort, or in an equitable suit...