Feldmeier v. Superior Court

EDMONDS, J.

By this proceeding the petitioners seek a writ of mandate directed to the respondent court requiring the issuance of a writ of execution upon a judgment in their favor. They also ask that a writ of prohibition issue to prevent the superior court from making an order dispensing with a bond on the appeal of Security Title Insurance and Guarantee Company from the judgment.

The petitioners are the plaintiffs in an action brought in the superior court against the Security corporation and others. They recovered a judgment and applied to the clerk of the court for a writ of execution thereon. The clerk refused to issue the writ, whereupon petitioners moved the court for an order requiring the clerk to do so. The motion was denied. At the same time the Security corporation made a motion for an order dispensing with an undertaking for the purpose of staying the execution of the judgment pending its appeal upon the ground that it is a trustee acting in another’s right.

[304]

(Sec. 946, Code Civ. Proc.) The court took this motion under advisement and a decision upon it is now pending.

The controversy concerns certain money and property held by the Security corporation as the depositary under an indenture providing for the issuance by Mortgage Securities, Incorporated, of mortgage participation certificates against securities deposited with it. The petitioners, as owners of some of these certificates, after default, sued to recover the amounts due thereon, demanding, among other things, that the assets held by the Security company be charged with a lien therefor and that they have a personal judgment against the depositary on account of an alleged breach by it of the provisions of the trust indenture. They also challenged the validity of certificates issued to Jane V. Reinert.

The judgment in this action went in favor of the plaintiffs. It determines that they are the owners of certificates of a total par value of $77,833.74; that the certificates of Jane V. Reinert of a par value of $52,150 are void; that Mortgage Securities, Incorporated, and Security Title Insurance and Guarantee Company are “charged in favor of plaintiffs with the sum of $77,833.74 . . . and that this sum is due and owing ... ”. The judgment also gives the plaintiffs a lien upon all the trust assets in the possession of the depositary, “which liens are . . . prior and superior to any and all liens, interests or title which any other party or parties to this action may have or claim ...” and that these liens shall be enforced by the application forthwith of $20,007.36 in the hands of the depositary, and that in case of refusal or failure of Security Title Insurance and Guarantee Company to pay this amount within ten days after the filing and entry of the judgment, any of the plaintiffs “may have execution against” it.