Harvey v. Whyte

HERNDON, J.

Respondent is the assignee of a money judgment rendered on December 20, 1951, against Allied Building Supply Company, a corporation, hereafter called “the corporation.” Appellant is the purchaser of certain property at an execution sale held on October 18, 1951, to enforce a judgment rendered against one Lee H. Stroble in an unrelated action entitled “Ennis v. Stroble.” The property so purchased by appellant actually was owned by the corporation and not by the judgment debtor Stroble. Both appellant and the marshal who conducted the sale had been so informed prior to the sale.

Respondent brought the instant action in the nature of a creditor’s bill resting appellant’s liability on the factual premise that appellant held property of the corporation, respondent’s judgment debtor, and claimed it adversely. This action invokes section 720 of the Code of Civil Procedure,

[688]

which so far as here material provides: “If it appears that a person . . . alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him, or denies the debt, the judgment creditor may maintain an action against such person . . . for the recovery of such interest or debt; ...”

Stroble was the principal stockholder of the corporation, which became inactive in 1951. Thereafter Stroble carried on a contracting business as an individual at the same address, using the fictitious name “Allied Building Supply Company.” As above indicated, the Ennis judgment ran against Stroble individually whereas respondent’s judgment ran against the corporation. Immediately before the marshal commenced the execution sale pursuant to a writ issued under the Ennis judgment, Stroble announced to all persons present the fact that none of the property on the premises belonged to him but was the property of the corporation. Nevertheless, the marshal proceeded with the sale and appellant purchased certain items of the personal property for the sum of $626.50. There was testimony at the trial of the instant case that the property was actually worth from $12,000 to $25,000.

Appellant does not question the sufficiency of the evidence to support the finding of the trial court that the property which he purchased under the judgment against Stroble was not owned by Stroble, but was in fact the property of the corporation, respondent’s judgment debtor. Neither does appellant question the fact that the value of said property clearly exceeded the amount of the instant judgment.