Kuzmicki v. Nelson

MOORE, P. J.

Appellant, Charles Nelson Specialities Co., Inc., demands a reversal of an order denying its motion to vacate a writ of attachment theretofore levied. The grounds for its motion were (1) the insufficiency of the affidavit; (2) plaintiff has no cause of action upon contract against appellant.

Chronology

On July 13, 1949, respondent filed her complaint against 11 Charles Nelson, individually and doing business under the fictitious firm name and style of Nelson Specialties of California and John Doe,” alleging indebtedness for “money had and received.” On the same day she filed her amended complaint against the same defendants with the additional allegations of the assignment of the claim to her by Sonelco, a corporation, and her ownership thereof. On August 23 Nelson and others incorporated appellant. September 20 respondent filed her ’ second amended complaint adding appellant as a defendant, along with Doe One, Doe Two, Doe Three, Doe Four and Doe Five. She therein alleged that Charles Nelson and the five Does are partners of Charles Nelson doing business under the fictitious firm name and style of Nelson Specialties of California and that they had become indebted to Sonelco for money had and received and in a second count that at the time Nelson and the partnership became indebted to Sonelco, Nelson “and said partnership owned certain valuable contracts . . . with certain general contractors,” and that about September 1, 1949, with the intention of placing them beyond the reach

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of his creditors, Nelson, without consideration, assigned the contracts to appellant, a “newly formed” corporation of which Nelson is president and holder of one half of its issued stock; that appellant received such assignment with knowledge of Nelson’s fraudulent intent and thereby rendered Nelson and his partnership insolvent.

On January 17, 1950, respondent amended her last pleading by substituting for Doe One, the name of appellant which she had discovered to be the true name of Doe One. At the same time she sued out a third alias writ of attachment and filed with the clerk her “Statement to Clerk” in which she declared her intention to instruct the sheriff to levy upon the account receivable of appellant with American Seating Company in Los Angeles. Two days later appellant filed its Notice of Motion to Vacate the attachment accompanied by the affidavit of its attorney averring the date of appellant’s incorporation, the amendment to the second amended complaint substituting appellant for “Doe One,” a defendant named in the last mentioned pleading notwithstanding the fact that appellant had been designated as a defendant in such pleading.