MacMillan Petroleum Corp. v. Griffin

WOOD (Fred B.), J.

Plaintiff has appealed from an order of May 25, 1951, denying its application under section 685 of the Code of Civil Procedure for leave to enforce a judgment of May 17, 1934, against defendant George H. Jovick.

The original plaintiff in the action was Mileage Gasoline Company, a Nevada corporation doing business in California. In 1937 Mileage Company transferred all of its assets to Macmillan Petroleum Corporation. Mileage Company then surrendered its license and authority to conduct business in California and voluntarily dissolved December 24, 1937.

Macmillan Petroleum Corporation did not notify Jovick, the judgment debtor, of this transfer, nor did it inform Mr. Mahl or Mr. Hatch, the attorneys who had represented Mileage Company in this action, that the transfer had been made or that Mileage Company had been dissolved. It did nothing whatsoever looking toward enforcement of the 1934 judgment or discovery of assets of the debtor until Mr. Mahl in the latter part of 1947 informed M. P. Macmillan, vice president of Macmillan Corporation, formerly president of the Mileage Company, that there was some possibility of collecting the judgment and asked Mr. Macmillan if he would authorize the expense that would be involved. Macmillan told Mahl he would authorize it but did not tell Mahl in what capacity he was acting.

Mr. Hatch then applied to the trial court, in the name of and on behalf of Mileage Company for leave to enforce the judgment. An order granting such leave was made December 19, 1947. Subsequently, defendant Jovick discovered and presented proof that Mileage Company had been dissolved. It appears that until then Mr. Hatch did not learn of the assignment to Macmillan nor of the dissolution of Mileage and that until then he acted as if no such dissolution or

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transfer had occurred. Hatch applied for a substitution of parties and on August 21, 1948, Macmillan Corporation was substituted for Mileage Company as plaintiff in the action.

December 3, 1948, the trial court found and declared the orders of December 19, 1947, and August 21, 1948, void. Upon Macmillan’s appeal therefrom we held the order for substitution valid and the order granting Mileage leave to enforce the judgment void. (99 Cal.App.2d 523 [222 P.2d 69].) In so holding, we said: “Nothing herein stated will prevent an application by Macmillan to the superior court for an order enforcing the judgment. On such application the assignment of the judgment by Mileage prior to dissolution, as well as any fact showing diligence on the part of Macmillan after such assignment, may be shown to the superior court.” (P. 532.) Subsequently, Macmillan did make such an application. The order denying that application is the subject of the present appeal.