California Bank v. Diamond

NOURSE (Paul), J. pro tem.

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Appellant E. B. Corbin is one of the defendants in an action brought by respondent for declaratory and other relief. Appellant appeals from a money judgment rendered against him in the amount of $672.75, which was the full amount sought by the complaint.

Appellant makes five assignments of error. We shall treat of them in the order in which they are set forth in the brief.

Appellant’s first two points may be treated together as the second is but a corollary of the first. His first point is that the complaint does not state facts sufficient to state a cause of action for declaratory relief; his second point is that inasmuch as the complaint does not state a cause of action for declaratory relief, the court did not have jurisdiction to render the money judgment against him.

There is no merit in these points. By its complaint, the plaintiff alleged that prior to September 4,1954, the defendant H. Grabell and Sons of California (hereinafter called Grabell) executed and delivered to the defendant Diamond a check dated September 15, 1952, in the amount of $672.75 drawn upon plaintiff bank; that on the 4th of September, 1952, Grabell delivered to the plaintiff bank a written order to stop payment upon its said check; that on February 5, 1954, appellant caused the check to be presented to respondent for payment, and at that time it bore the endorsements of Diamond and Corbin, and plaintiff thereupon paid said check through the clearing house; that said check had been negotiated from Diamond to Corbin at some time between the date of its execution and delivery to Diamond and prior to the payment of said check by respondent; that prior to the negotiation of said check by Diamond to appellant the date of the check had been changed from September 15, 1952, to September 15, 1953; that on the 3d of March, 1954, defendant Grabell demanded of respondent return of said sum of $672.75, and thereupon plaintiff made demand upon Cor-bin for the return of said sum, and also made demand upon

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Diamond for the return to plaintiff or Grabell of said sum, but neither had returned any portion of said sum to either respondent or Grabell; that an actual controversy existed between respondent and the defendant concerning their respective rights under the cheek and under the circumstances, in that if Grabell was indebted to Diamond or to Corbin at the time respondent paid the check, or if Corbin was a holder for value at the time of the payment of said check, Grabell was not entitled to reimbursement in the amount of said check from respondent, but that if Grabell was not indebted to the defendant Diamond or appellant Corbin at the time the said cheek was paid, Grabell was entitled to reimbursement from respondent and respondent was entitled to reimbursement from Diamond and Corbin.