Eustace v. Dechter

YORK, J.

This is an appeal from judgments of dismissal after both general and special demurrers to the fourth amended complaint had been sustained without leave to amend. Appellant also attempts to appeal from the order sustaining said demurrers. Appellant sued respondents for damages for maliciously and without probable cause instituting a bankruptcy proceeding against her, having a receiver appointed and a citation for contempt issued, whereby she was imprisoned and deprived of her liberty.

From the allegations of the fourth amended complaint it appears that one John M. Eustace, husband of appellant, was engaged in the plumbing business under the fictitious name of Eustace Plumbing Company; that appellant and the respondent A. M. Kupfer were jointly engaged in the drilling of an oil well in the Baldwin hills; that in connection with said last-mentioned venture, respondent Coates on behalf of respondent Oil Tool Exchange, acting through their attorney Dechter, secured a judgment against appellant and said Kupfer for $6,284.02; also that respondents Spiers and Meadows had an action pending against appellant and Kupfer on August 23, 1934. It also appears that prior to and culminating on said August 23, 1934, respondent Lotta A. Wagner maliciously, falsely and wickedly by promises and inducements'solicited respondents Dechter and Kupfer “to procure or cause to be procured contempt and/or malicious arrest charges to be preferred and obtained against the plaintiff . . . and as a part of said unlawful scheme and without probable cause and with malice aforesaid did further likewise engineer by reason of her intimate and personal knowledge of the affairs of the plaintiff and cause to be filed an involuntary petition in bankruptcy entitled, ‘In the matter of Katie M. Eustace, doing business as Eustace Plumbing Company, alleged bankrupt As a further step in her wicked and malicious scheme, it is alleged that respondent Wagner procured respondent Kupfer, who then became a party to said plan, to file a petition for the appointment of a receiver in the bankruptcy matter; that respondent Lynch was appointed such receiver, and “immediately upon his qualifica

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tion as receiver, E. A. Lynch, pursuant to the wicked and malicious scheme and plan of the defendant Lotta A. Wagner to cause the arrest of the said plaintiff for contempt and upon her insistence”, did on or about September 10, 1934, seek to take possession of the plumbing business of John M. Eustace, husband of appellant; that said move by such receiver was opposed by appellant and her attorney, Charles W. Fourl, and said receiver was advised by them that the premises and business were owned by John M. Eustace, and said receiver was ordered and requested to quit and vacate said premises; that respondent Wagner “in an attempt to break said plaintiff financially and otherwise and to procure her arrest for contempt, continued to urge and procured the defendants Lynch and Dechter and the remaining defendants ‘to crash’ the plumbing business of John H. Eustace thereby maliciously and wickedly damaging the plaintiff and in pursuance thereof attempted to have said defendant Lynch, through threats and coercion to have the plaintiff surrender her husband’s keys to the plumbing business aforesaid and upon being informed by the plaintiff and her attorney that said defendant Lynch had no right to possession said Lotta A. Wagner thereupon marshalled the remaining defendants and thereafter on or about September 11, 1934, caused E. A. Lynch to file a petition for an order to show cause why the plaintiff should not be found in contempt of court and as a result thereof said E. A. Lynch filed a petition for contempt against said plaintiff in which all of said defendants aided and abetted him in preparing and filing said petition”. That on September 13,1934, pursuant to such false and fraudulent acts of respondents, an order was entered by the United States District Court upon said petition after testimony was offered, respondents “then and there knowing that such charges were false”, which said order found appellant guilty of criminal contempt of court and directed that the premises of the plumbing company be restored to the receiver, and on September 24,1934, appellant was committed to the Orange County jail until a fine of $1,000 should be paid. A stay of execution was denied and appellant was confined in custody and restrained of her liberty for approximately eight hours. An appeal from the judgment of contempt was taken, and on December 17, 1935, the United States Circuit Court of Appeals for the Ninth Circuit reversed the said judgment