Buckman v. Tucker

SEAWELL, J.

David Thompson, since deceased, on September 8, 1934, brought an action against appellant K. A. Buekman in a class A justice’s court in San Joaquin County to recover the sum of $439.72, plus interest from July 16, 1934, which sum was claimed to be due from Buekman to Thompson for money alleged to have been paid by Thompson for the use and benefit of Buekman. In that action Thompson attached certain moneys of Buekman. Subsequently that action proceeded to trial, resulting in a judgment for Thompson in the sum of $439.72 plus $8.95 costs. Buekman appealed to the superior court, but did not file a stay bond. Thompson .secured the issuance of a writ of execution and collected the amount of his judgment on February 18, 1935. In May of 1935, a trial

de novo

was had in the superior court and, on the 28th of that month, the superior court caused to be entered a judgment of dismissal of Thompson’s action on the ground that, under the agreement of the parties, it had been prematurely brought—that the debt would not mature until July, 1935. It is here to be noted that Buekman did not at that time in that action seek restitution of the money secured by Thompson under the execution, as she might have done under the procedure outlined in section 957 of

[405]

the Code of Civil Procedure. (See 2 Cal. Jur. 1000, sec. 592.)

Thereafter, and on July 10, 1935, Buekman commenced the present action against Thompson in the Superior Court of Calaveras County, residence of Thompson, on a money had and received complaint, for $454.46, that sum concededly including the $439.72 plus $8.95 costs awarded Thompson by the justice’s court, plus the costs of the execution. Thompson thereafter on July 24, 1935, filed a pleading entitled “Answer and Cross-Complaint”, denying the allegations of the complaint and asserting by way of counterclaim and cross-complaint the identical claim for $439.72 plus interest that had been the subject of the justice’s court action. This claim, by the time the answer was filed, had matured. In the trial court Buekman contended, and now contends here, that inasmuch as her action for money had and received is to recover for money paid under a judgment later reversed, such action is one for restitution,- and that it is not proper nor permissible in such action for the defendant to set up a counterclaim or set-off. The trial court rejected this contention. After a trial on the merits, the court found that in .February, 1935, Thompson received the sum of $454.46 to and for the use of Buekman; that Buekman did not demand interest; that on July 16, 1934, Thompson, at the request of Buekman, advanced for her account and benefit $439.72; that Buekman promised to repay the same on or before July 1, 1935, but failed to do so; that interest on said sum from July 16, 1934, to October 29, 1935, is $38.57; that Thompson’s counterclaim does' tend to diminish and defeat Buekman’s recovery; and that the two claims originated out of the same transaction. The court thereupon granted a judgment in. favor of Thompson for $23.83, that sum being the difference between the amount borrowed by Buekman ($439.72 plus interest of $38.57) and the amount received by Thompson on the execution, $454.46.