First Savings & Loan Ass'n v. Bank of America

Opinion

TAYLOR, J.

Bank of America (hereafter Bank) appeals from an adverse judgment allowing First Savings and Loan Association (hereafter First) restitution for its mistake in honoring a writ of execution against its depositors, Albert E. and Robin E. Bell (hereafter collectively referred to as Bell). The Bank contends that restitution was not the proper remedy as First’s mistake was one of law, and the satisfaction of the Bank’s prior judgment against Bell constituted a change of position. We cannot agree.

The facts are not in dispute. On July 26,1966, the Bank obtained a judgment for $3,603.19 against Bell. On September 27, 1966, a writ of execu

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tion directed to the Sheriff of Santa Clara County was issued for the amount set forth above, and interest thereon. The sheriff, in accordance with the Bank’s instructions, levied the writ on First, which at that time had an account standing in the names of Barbara Bruch and Robin Elizabeth Bell, Trustees for Robin Elizabeth Bell, under a testamentary trust (hereafter Trustees). There was no bond provided as required by Code of Civil Procedure section 682a.

First paid the sheriff the sum of $3,717.93 in response to the writ of execution. The sheriff then paid the Bank the sum of $3,692.62 in full satisfaction of the judgment and interest thereon and kept the balance for his expenses. The sheriff then returned the original writ indicating that the judgment had been satisfied.

On March 21, 1967, an action was commenced by the Trustees against First, the Bank and the sheriff. First cross-complained against the Bank and Bell, seeking restitution for any recovery obtained by the Trustees, and the Bank cross-complained against Bell. On January 26, 1968, First and the Trustees entered into a stipulation whereby First, in settlement of the Trustees’ action against it, agreed to pay them $3,717.93. The Trustees’ action against the sheriff was assigned to First and was subsequently dismissed. On May 7,1968, a corrected judgment was entered against the Bank in favor of First in the amount of $3,692, together with interest, and $35 for costs and disbursements. A judgment in like amount was entered in favor of the Bank against Bell. On May 27, 1968, the Bank filed its notice of appeal from the judgment in favor of First.