National Automobile & Casualty Insurance v. Pitchess

Opinion

THE COURT.

On October 13, 1966, plaintiff filed an action against H. R. Johnson Construction Company and others. A writ of attachment issued in that action on that same day. On October 17, 1966, the writ was served on Nelson & fielding Construction Company, who answered, on October 25, 1966, that it was indebted to the Johnson Company in the sum of $12,557.60, less certain offsets. Thereafter George Coleman brought suit against the Johnson Company, in which, on November 21, 1966, he recovered judgment. Coleman caused execution to issue on that judgment and instructed the sheriff to serve that writ on the Nelson & fielding That levy was made on January 19, 1967. On March 28, 1967, Nelson & fielding sent the sheriff its check for $10,053.17, with a in the transmission to the October 1966, attachment in plaintiffs suit. Through error in the sheriffs office, the funds so received from Nelson & fielding were paid over to Coleman.

[64]

In the meantime, plaintiff had recovered judgment against the Johnson Company and, on October 9, 1969, demanded release to it of the funds received from Nelson & Belding. The sheriff’s office refused. Claim for the money was filed with defendants on April 7, 1970, was rejected on May 22, 1970, and this action followed, on September 10, 1970.

This action ultimately was consolidated with an action by the sheriff against Coleman. Judgment in the consolidated action was entered in favor of Sheriff Pitchess against Coleman and in favor of plaintiff against Pitchess and the county.

1

The parties have not cited to us, nor has our research found, any cases directly in point. The briefs of the parties proceed on the following analysis of the problem:

If plaintiff’s cause of action is in tort for conversion and if it cannot “waive” the tort and sue in assumpsit, the judgment in its favor is erroneous both because it never complied with the notice of claim provisions of the Tort Claims Act and because the action was barred by a one-year statute of limitations. On the other hand, if plaintiff’s cause of action is in contract, or if it may validly waive any tort and sue in assumpsit, the Torts Claim Act is not applicable, the statute of limitations had not run and the appealed from is correct.