City of San Jose v. Forsythe

SHOEMAKER, P. J.

Plaintiffs City of San Jose, the Retirement Board of the Federated City Employees’ Retirement System, and Jack Marzluft, the city auditor, brought this action for declaratory relief against defendants Chester Forsythe and the Municipal Employees’ Credit Union of San Jose.

The facts are without dispute.

Defendant Forsythe was an employee of plaintiff city from March 1, 1962 until March 2, 1964 and while so employed was a member of the retirement system. During the period of his employment, monthly sums were deducted from his salary and deposited in the retirement fund. On July 17, 1963, defendant Forsythe was granted a loan of $1,650 by credit union and executed an installment note and a special power of attorney authorizing defendant credit union “to receive, endorse or collect checks payable to [Forsythe] issued by any person, firm or corporation whatsoever, and to give a full discharge for the same. . . .’’ Upon the termination of his employment, plaintiff retirement board authorized the return to Forsythe of his accumulated contributions in the sum of $524.71. Plaintiff city auditor drew a warrant in that amount in Forsythe’s favor and he and defendant credit union demanded delivery of the warrant.

Under section 2904.128 of the San Jose Municipal Code, the right of any person to money in the retirement fund was unassignable. Plaintiffs assert that section 2904.128

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prohibited plaintiff city auditor from delivering the warrant to defendant credit union.

Defendant credit union asserts that the power of attorney was in full force and effect and that it was entitled to Forsythe’s accumulated contributions in the retirement fund.

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Forsythe failed to appear in the action, either in person or by counsel, and his default was entered.

At the trial it developed that the proceeds of the warrant, if received by credit union, would be paid to the comakers of the nóte, who had already paid defendant credit union the amount due under the note.

. The trial court made findings of fact in accord with the foregoing statement and further found that defendant Forsythe’s default had been duly entered,- that Forsythe’s accumulated contributions in the retirement fund were not wages or salary within the meaning of Government Code, section 1155 ;