Lerno v. Obergfell

BURCH, J. pro tem.

*

This is an appeal by two of the defendants, Shirley Obergfell and Edwin P. Obergfell, from an order denying a motion for stay of execution which was entered October 14, 1955.

The record on appeal shows (1) the entry on November 4, 1954, of a judgment on a verdict in favor of Paul A. Lerno against these and other defendants for $500 compensatory damages, $500 exemplary damages and $54.40 costs. (2) Affidavit of Edwin P. Obergfell in support of the motion to stay execution, which affidavit alleges Paul A. Lerno is insolvent and has been sued by Marjorie M. O’Bryan for $2,030 in a pending action Number 29512 in the same superior court; that attachment proceedings were instituted by her

[223]

and Edwin was garnished in his capacity of judgment-debtor of Lerno.

The theory of the affiant is that the 0 ’Bryan suit may end in collecting from him in the attachment proceedings and that Lerno will proceed with execution, nonetheless, unless the stay is granted. The court below denied the motion as appears by a minute entry in the clerk’s transcript. These are all the material facts before us on appeal. If nothing more was before the court below in denying the motion, the general rule as stated in

McFadden

v.

O’Donnell,

18 Cal. 160, followed in

McKeon

v.

McDermott,

22 Cal. 667 [83 Am.Dec. 86] and extended in

Glugermovich

v.

Zicovich,

113 Cal. 64 [45 P. 174], would properly control decision. That general rule is to the effect that a stay of execution may be ordered until the attachment proceedings are disposed of if required to protect the garnishee from double payment, to the end that he pay but once and that payment be made to the claimant with the superior legal right.