Wellborn v. Wellborn

SHINN, J.

This is an appeal by Barry Sullivan, one of the defendants, from a temporary injunction restraining him, pending the trial of the instant action in the superior court, from causing to be tried three certain actions which had been instituted by him and others in the justice’s court.

The complaint is not in the record but the parties agree that the action is one to determine title and the right of possession of real property, improved with a dwelling house, and for an accounting of rents collected therefrom by the defendants. The litigation over the property has quite a history, which is related in the affidavits and counteraffidavits upon which the court based the restraining order. It appears therefrom that in November, 1939, plaintiff obtained an annulment of her marriage to Charles Wellborn by judgment which also declared her to be the owner of the property in question and awarded Charles Wellborn a lien upon it for $1,250. There was no personal judgment for the amount and no provision in the judgment for its collection by foreclosure or otherwise. Charles Wellborn caused execution to be issued, the property to be sold, and bid it in for $1,000. Plaintiff herein made a motion to vacate the writ of execution and the sale, the motion was denied, and the order was reversed on appeal, the writ and the sale being held void

(Wellborn

v.

Wellborn

(1942), 55 Cal.App.2d 516 [131 P.2d 48]). Following this reversal the superior court made an order quashing the execution and vacating the sale pursuant to the holding on appeal that they were void. Prior to the reversal Charles Wellborn instituted an action of unlawful detainer in the justice’s court against Mary Knight and E. D. Toole, tenants of plaintiff in the property. Plaintiff filed an answer in the case, apparently upon the theory that she was the Jane Doe named in the complaint, but her answer was stricken out and judgment went in favor of Charles Wellborn, a writ of possession was issued, and Charles Wellborn, Barry Sullivan, D. E. McGregor and

[542]

S. A. Sullivan took possession of the property and collected rents therefrom. The three newcomers had acquired all or a part of the interest of Charles Wellborn in the property, such as it was. Plaintiff then took up her residence on the property and entered into written leases with Mr. and Mrs. E. V. Morrison and Mr. and Mrs. Earl Brokow. It was stated in the affidavit of Barry Sullivan that he, S. A. Sullivan and Mc-Gregor also entered into agreements to rent the premises to Mr. and Mrs. Morrison and Mr. and Mrs. Brokow and that they had been collecting rents thereunder. After the sale to Charles Wellborn had been declared void, the two Sullivans and McGregor brought three unlawful detainer actions, two against Earl Brokow and wife and one against E.- V. Morrison and wife. These actions were about to be tried at the time the temporary injunction was issued (December 6, 1943) restraining the trial of the actions until the present action should be tried. Apparently- it has not been tried, although it could have been disposed of in far less time than has been required for the disposition of the appeal. The fact that Barry Sullivan has taken the present appeal, instead of going to trial in the superior court, and has thereby delayed the trial of the action on the merits is worthy of notice, in view of the fact that the injunction in question was issued under the equitable power of the court to try in a single action the issues involved in a multitude of actions at law, in order to put an end to unnecessary and vexatious litigation.