Kyne v. Kyne

SHENK, J.

Tom Kyne, Jr., aged three years, recovered a money judgment against defendant Tom Kyne in the sum of $7,702.87 in an action to establish paternity and for support. On November 10,1938, execution was levied upon coins and currency to the amount of $10,000 in the possession of said defendant. The sheriff retained sufficient of this money to satisfy the plaintiff’s claim. R. M. Wilson, Julius Wild and Earl Eby filed third party claims to said money totaling $7,695. The plaintiff filed a petition for a hearing to determine title to the property levied upon. After hearing, the court entered judgment for the third party claimants. The plaintiff appealed from the judgment. Thf third party claimants will be referred to as the respondents.

The claims of the respondents arose o.ut of the following facts: The defendant was and had been for many years a self-styled “betting commissioner”. He maintained a place of business for the purpose of accepting wagers on the happening of events. He accepted bets made, received the stakes risked, and issued receipts stating the terms of the wagers. His method was, if possible, to cover wagers by making offsetting wagering agreements with other bettors. His remuneration was a commission of five per cent charged on all deposits or stakes.

On November 8, 1938, a general election was held in California. On or prior to that date each of the respondents had made certain wagers with the defendant as to the outcome of the voting for gubernatorial and senatorial candidates. The vote cast for such candidates determined that Wild, who had staked $1,500, won $1,500. He claimed $3,000 of the money taken under execution levy by the sheriff. Eby staked $790 and won $790, making his claim $1,580. Wilson staked $1,650 and won $1,465, a total of $3,115.

[438]

On November 10, 1938, the defendant Kyne took a valise containing $10,000 in coins and currency to his place of business. This purportedly comprised all the moneys wagered by various bettors on the outcome of the election and was to be used to pay the winners after deducting the 5 per cent commission. The sheriff under the levy took $7,702.87 of this money. The balance was sufficient for and was used by the defendant to pay off other winners, but without retaining any commissions. The only persons placing bets on said election with the defendant who were not paid their winnings were the respondents herein. The court adjudged that $500 of said sum of $7,702.87, representing 5 per cent on the total deposits of $10,000, belonged to the defendant Tom Kyne, and that each of the respondents was entitled to the total amount of his claim, namely, his stake and his winnings, less a proportionate amount of the $500 commission.