Young v. Superior Court

[212]

SHENK, J.

This is a proceeding in review to annul an order of the respondent Superior Court made on June 17, 1939, in an action to quiet title pending in said court, entitled

John Crofton

v.

Pacific Coast Joint Stock Land Bank of San Francisco

(No. 93526), hereinafter called the bank. The real property involved had been owned by Thomas N. Crofton, the father of John Crofton. On April 26, 1935, the father transferred the title to said real property to his son. At the time of said transfer Thomas N. Crofton was indebted to the bank in the sum of $4,951.

The following occurred in 1938: On March 28th the bank recovered a judgment against Thomas N. Crofton in the sum of $4,951 on the indebtedness aforesaid, with interest and costs. On April 28th execution was issued on that judgment and, on June 21st, was levied on said real property on the theory that the transfer of title had been made for the purpose of defrauding creditors and that the property still belonged to Thomas N. Crofton. On June 30th the bank assigned the judgment to O. P. Neal. On July 1st, Thomas N. Crofton filed a voluntary petition in bankruptcy and on July 2d was adjudged a bankrupt. On July 18th John Crofton commenced his action to quiet title, naming the bank as the defendant. On October 1st Neal obtained an

ex parte

order making him a party defendant in the action. The order was made on the ground that he was a necessary party to the determination of the rights of the parties to the action. Neal thereupon, and pursuant to section 442 of the Code of Civil Procedure, served on the plaintiff’s attorney and filed an answer to the complaint and a cross-complaint alleging that the transfer of the real property from Thomas N. Crofton to John Crofton was for the purpose of defrauding creditors, and claiming a lien on the real property in the amount of the judgment against Thomas N. Crofton. An answer to the cross-complaint was not served or filed by the plaintiff within the time allowed by law, and on October 20th, on Neal’s application, the clerk entered the default of the plaintiff and cross-defendant. On November 10 th receipt of a copy of an answer to the cross-complaint was acknowledged in the name of the attorney for the cross-complainant Neal, and the original thereof was filed on November 14th.