Security First National Bank v. Whittaker

WHELAN, J.

The personal representative of plaintiff Stathis appeals from a judgment of nonsuit granted under section 631.8 of the Code of Civil Procedure.

Plaintiff’s complaint was to quiet title to an undivided one-half interest in an on-sale general license, an on-sale beer and wine license issued to a restaurant known as Lido Castaway, in all of the furniture, fixtures and equipment of the restaurant and in all other property of the Lido Castaway business.

The oral proceedings at the trial were brief. There had been an earlier trial of the case and plaintiff perhaps assumed that

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the familiarity of both sides with the factual background as developed in the former trial lingered on in the courtroom like perfume from the tomb of some long-dead Egyptian.

At the second trial no witness was sworn; four exhibits of plaintiff were marked for identification. Plaintiff’s exhibit 1,. a copy of a notice of dissolution of a partnership known as Lido Castaway between defendant and John J. Cirillo, which was signed by 'defendant and published on July 18, 1962, was received in evidence.

Plaintiff’s exhibit 2 for identification is a certified copy of an order of the referee in bankruptcy of the bankrupt estate of John J. Cirillo. It was made July 20, 1962, and it confirmed to plaintiff the sale for $300 of “all the right, title and interest”of Cirillo “in and to the partnership known as ‘Lido Castaway.’ ”

Plaintiff’s exhibits 3 and 4 for identification were a reporter’s transcript of the proceedings in bankruptcy,- and the notice of the meeting of creditors.

Defendant’s objections to the introduction of plaintiff’s exhibits 3 and 4 for identification were sustained; his objection to plaintiff’s exhibit 2 was overruled. Nevertheless, plaintiff’s exhibit 2 is not marked as having been received in evidence.

Upon this state of the record, plaintiff rested. Following the granting of defendant’s motion, findings were prepared and signed. Finding No. 1 was that Cirillo was adjudicated a bankrupt on April 26, 1962, and that the referee purported to take jurisdiction of Cirillo’s partnership interest and to sell such interest to defendant and confirmed such sale to defendant.