Grotheer v. Meyer Rosenberg, Inc.

KNIGHT, J.

Plaintiffs seek by this action to hold the defendant Meyer Rosenberg, Inc., liable for the payment of a money judgment previously obtained by plaintiffs against the defendant Meyer Rosenberg, individually, upon the ground that said corporation is the

alter ego

of Meyer Rosenberg, individually. At the time of the commencement of the action they secured a writ of attachment which they caused

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to be levied on a bank account of $624.33 standing in the name of said corporation. Thereafter the corporation moved to dissolve the attachment, and pursuant to said motion an order was entered vacating, setting aside and recalling the writ of attachment and directing the sheriff to release all property levied upon. From such order plaintiffs have taken this appeal.

It was contended by the respondent in the trial court and is now urged on appeal in support of said motion that neither of the two causes of action set forth in the complaint are founded on contract, express or implied, for the direct payment of money (subd. 1, sec. 537, Code Civ. Proc.), and that therefore the ancillary remedy of attachment is not available to plaintiffs. We find no merit in this contention.

The following are the facts as they appear from the allegations of the complaint, which at the time the motion was heard and determined were not denied by answer, affidavit or otherwise: During the month of November, 1931, Meyer Rosenberg, a contractor engaged in the business of grading and excavating, while grading property adjacent to plaintiffs’, negligently damaged plaintiffs’ property. On September 25, 1933, they brought an action against him in the municipal court for the damages thus sustained; and on March 20, 1934, judgment was entered in their favor for the total sum of $2,750 and costs. However, a few days prior to the com-. mencement of the action and on September 12, 1933, Rosenberg organized a corporation under the name of Meyer Rosenberg, Inc., and on November 15, 1933, transferred to the corporation all of his property and assets consisting of his contracting machinery and implements, contracting and office equipment, existing contracts, accounts and notes payable, cash on hand, and a considerable amount of oil stock, all of which he had acquired in the operation of his contracting-business ; and in consideration of such transfer the corporation agreed to assume all obligations and debts incurred by Rosenberg while conducting said business. In thus divesting himself of all his property, Rosenberg, so the complaint alleges, rendered himself insolvent, and on May 22, 1934, approximately two months after plaintiffs secured the judgment for damages against him, they brought the present action to obtain a money judgment against the corporation covering the amount called for by the judgment entered