Chung Gee v. Quan Wing

SCHOTTKY, J. pro tem.

Plaintiffs and appellants commenced this action against defendants and respondents on February 19, 1949, to set aside a judgment recovered in the Superior Court of Los Angeles County by Quan Wing and Quan Yow Yuen (defendants and respondents here) against the Kwong Yick Company (plaintiff and appellant here). The complaint alleged, in substance, that respondent Quan Wing was a partner in the firm of Kwong Yick Company;

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that he and his attorney in fact, respondent Quan Yow Yuen, by falsely conspiring with defendant Quan Min pretended that defendant Quan Min was a member of the copartnership of Kwong Yick Company, and obtained the judgment against appellants by default judgment entered after service upon said Quan Min; that said Quan Min was not a partner in the firm of Kwong Yick Company and that respondents Quan Wing and Quan Yow Yuen intentionally withheld from the court the fact that Quan Wing was a partner and the fact that Quan Min was not a partner in Kwong Yick Company; that appellants were not indebted to respondent Quan Wing, as alleged in- the said action filed in Los Angeles County; and that said judgment was obtained by extrinsic fraud and is void.

Issue was joined and after a trial the court found, among other things, that the judgment in favor of respondent Quan Wing and against appellants was in all respects duly and regularly entered; that appellants had full knowledge of the commencement of said action and of the service of summons upon Quan Min, one of the partners of said copartnership in March 1947; that it was not true that defendants Quan Wing, Quan Yow Yuen and Quan Min conspired together to obtain said judgment; that Quan Min was a copartner and had all the powers and responsibilities of a partner of said firm; that it is not true that said judgment was obtained by extrinsic fraud. Judgment was entered in accordance with said findings and this appeal is from said judgment.

The record discloses that on February 21, 1947, Quan Wing and Quan Yow Yuen (defendants and respondents here) commenced an action in the Superior Court of Los Angeles County against the Kwong Yick Company and a writ of attachment was issued and levied upon money in two banks in the account of said company. Complaint and summons were served upon Quan Min in Los Angeles on March 3, 1947, and he sent same to Kwong Yick Company in San Francisco. The company took the matter up with their attorney, who testified at the trial that they informed him that Quan Min was not a partner, and that he then advised them that no valid judgment could be obtained against them if Quan Min was not a partner. The default of Kwong Yick Company was entered on March 19, 1948, and on April 6, 1948, judgment was entered in the Los Angeles action. A writ of execution was issued on October 25, 1948, and levied by the Sheriff of the City and County of San Francisco. Appellants then