Menghetti v. Dillon

California Supreme Court Jan 20, 1938 No. Sac. 5028Published

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Holding. The court affirmed the judgment in favor of the defendants, holding that the findings of fact were sufficient to support the judgment and that no miscarriage of justice occurred.

Issues

Whether the trial court's findings of fact and conclusions of law were inconsistent or unsupported by the evidence.
Whether the judgment should be reversed based on technical challenges to the findings on an appeal upon the judgment roll alone.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Findings are to be read and considered together and liberally construed in support of the judgment and if possible are to be reconciled so as to prevent any conflict upon material points.”

“In “an appeal upon the judgment roll alone the findings are conclusively presumed to be supported by the evidence”

“Applying the foregoing rules to the findings and judgment presented in the judgment roll herein, we conclude that the judgment is fully sustained.”

THE COURT.

This is a controversy based upon allegations that personal property upon which execution had been levied under a justice’s court judgment for $229.80 was the property of the judgment debtor, notwithstanding a verified third party claim thereto by the other defendant, because a transfer or pledge thereof as security, claimed by defendants to have been made more than seven months before the levy, was not preceded by the recordation of notice of intention to transfer or assign, as required by the provisions of section 3440 of the Civil Code of the State of California. Plaintiff filed an equity action in the superior court, praying that defendants “be adjudged to apply the . . . property to the payment of the judgment’’ etc., and “that defendants be enjoined from selling, transferring, assigning or interfering with said property . . . pending judgment’’.

Issue was joined in the instant case and it went to trial. . A decision in favor of plaintiff seems to have been rendered by the judge then in office but neither findings nor judgment thereon were signed. Approximately six years after the complaint was filed the case was again brought to trial before the successor of the first judge. Immediately preceding- the second trial a supplemental answer of the transferee defendant was filed alleging foreclosure, sale and delivery of the property to another under a lien for services, labor and skill for the improvement and safekeeping thereof and the incidental

[472]

costs and charges. The second trial resulted in judgment in favor of defendants and plaintiff appealed, filing a judgment roll transcript in December, 1935.

No "brief having been filed up to October, 1936, plaintiff was ordered by this court to show cause why the appeal should not be dismissed for want of prosecution. There being no appearance on the day fixed in the order the appeal was ordered dismissed, but two weeks thereafter, upon joint request and stipulation of counsel for the respective parties, the order was vacated and thirty days was allowed appellant to file brief. On September 30, 1937, brief being still unfiled, another order of the same nature was issued and in response thereto the joint brief of the parties and a stipulation to submit the cause thereon were filed. On the calling of the order to show cause, the appeal was submitted for decision, pursuant to the stipulation.

Menghetti v. Dillon

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THE COURT.

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