Silverman v. Greenberg

WASTE, C. J.

This action was. brought by plaintiffs in the superior court. The complaint contained four counts. The first count alleged that plaintiffs delivered $700 to defendant Charles Greenberg, which money he was to use for the purpose of purchasing certain real property for them; that, however, after accepting and receiving the $700 for that purpose, he purchased the property in his own name and converted the $700 to his own use and benefit; that plaintiffs demanded a return of the money but no part thereof has been returned or paid. The second count alleged that plaintiffs had demanded a deed by defendant to them of the property but defendant had refused to comply with the demand and purported to retain ownership of the property in his own name and right. The third count was in the form of an action to quiet title to the property. The fourth count alleged defendant’s indebtedness to plaintiffs in the sum of $700, money had and received by him for their use and benefit. The prayer of the pleading was for judgment against defendant in the sum of $700; or in the alternative that plaintiffs’ ownership and tight to possession of the property be decreed; that defendant be adjudged to have no right or interest therein and be ordered to execute and deliver a deed to plaintiffs, or in event of failure so to do, that the court authorize execution of such a deed; and that plaintiffs have costs of suit and general relief.

After issue joined by the answer and cross-complaint of defendant, the cause went to trial. The court found that of the $700 delivered by plaintiffs to defendant to be applied on the purchase price of the real property, defendant had converted $600 to his own use and benefit. The court further found that plaintiffs were not the owners of or entitled to possession of the property but that defendant was the owner and entitled to possession thereof. A judgment was entered accordingly in favor of plaintiffs and against defendant in

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the sum of $600 and interest, with a decree quieting title to the property in defendant. From this judgment defendant appealed on the judgment roll alone. Plaintiffs now move to dismiss the appeal or affirm the judgment.

Appellant’s sole contention is that the superior court was without jurisdiction to render the judgment for' the reason that the counts of the complaint on which judgment was entered for plaintiffs each stated causes of action within the exclusive jurisdiction of the municipal court. In other words, appellant urges that when plaintiffs failed to establish their right to equitable relief, the equitable character of the action was lost, and it became simply a ease at law wherein the demand exclusive of interest was less than $2,000, such case being within the jurisdiction of the municipal court. (Sec. 89a, Code Civ. Proc.)