W. J. Jones & Son, Inc. v. Independence Indemnity Co.

WOOD (Parker), J.

Plaintiff appeals from an order denying its motion for issuance of execution under section 685 of the Code of Civil Procedure.

The following facts, as shown by affidavits in support of and in opposition to the motion, are undisputed:

On April 17, 1933, appellant levied an attachment on all assets of defendants held by the receiver of the First National Bank of Beverly Hills. On April 21, 1933, the receiver responded to the attachment as follows: “You are advised that I am unable to locate property of any description except that the records show that Receiver’s Certificate No. 1654 for the sum of $5,021.88 has been issued and delivered to International Re-Insurance Corp., and a first dividend of 15 per cent has been paid on the claim. The certificate is the outstanding evidence of a proven claim against this failed bank and must be presented for endorsement when each subsequent dividend is delivered. Because of the notice of garnishment, I have entered on my records a hold order against delivery of subsequent dividend cheeks.”

On June 13, 1933, appellant obtained a judgment against respondents for $21,368.70, which was satisfied partially, leaving a balance of $8,536.36. On June 17, 1933, a writ of execution was levied on any sums or credits due from the

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said bank to respondent International Re-Insurance Corporation, by serving the receiver of the bank. The receiver made no reply thereto. When the writ of execution was levied, the assets of said respondent were in the possession of receivers appointed by the United States District Court.

On June 28, 1933, the Insurance Commissioner of California was appointed liquidator of said International Reinsurance Corporation by the superior court at San Francisco, with the exception that the order of said court exempted control of assets which were under control of the receivers appointed by the United States District Court. On December 3, 1934, the United States Supreme Court dismissed the said receivership proceeding as to said International Re-Insurance Corporation.

On January 10, 1935, the liquidation order of the superior court was extended to cover “all assets of said International Re-Insurance Corporation located in the State of California," and since said time said Insurance Commissioner has been the liquidator of said respondent.