Eistrat v. Cekada

SHENK, J.

This is an appeal from a judgment for the defendant in an action for damages for the conversion of lumber taken from the plaintiff’s property in Tulare County. The trial court held that the action was barred by the statute of limitations and the propriety of that ruling is the principal question for determination on the appeal.

On June 24,1949, one Tom G. Jones filed a petition in bankruptcy in the United States District Court under chapter XI of the Bankruptcy Act. He claimed title to certain lumber and the right to operate a sawmill on the plaintiff’s property free from interference by the plaintiff. He obtained an order from the referee in bankruptcy which provided as follows: “ [A] 11 persons be, and they hereby are, enjoined and stayed until final decree herein, from commencing or continuing any suit against Tom G. Jones, doing business as Jones Mill and Lumber Company, the above named debtor and the said Thomas. Eistrat is further restrained and enjoined from interfering with the debtor in the possession of his property and in the operation of the debtor’s mill and lumber business.”

On July 15, 1949, the plaintiff’s motion to dissolve the restraining order was denied but a surety bond was ordered in the plaintiff’s favor to indemnify him against loss from the operations of the debtor.

On September 29, 1949, the plaintiff, joined by his wife Elma, filed a petition in the bankruptcy proceeding to reclaim the property here involved. Final action on that petition was postponed. In November 1949 the defendant Cekada paid the receiver in bankruptcy $588 for whatever right, title or interest the receiver had therein and took possession of the lumber in question. OnApril 25, 1951, the court again denied a motion by the plaintiff to dissolve the restraining order but did order the dissolution of that portion of the restraining

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order which related specifically to the plaintiff’s interference with the possession of the real property and the operation of the mill and lumber business thereon. Finally, on October 1, 1951, the plaintiff’s petition to reclaim the property was granted and the restraining order dissolved in its entirety.

In making its order of October 1,1951, granting the petition to reclaim and dissolve the restraining order, the bankruptcy court made findings from which it concluded that neither Tom Jones, the receiver in bankruptcy nor the trustee had any right, title or interest in the real property of the plaintiff or in “any of the logs, lumber or timber located thereon or removed from said real property”; that the trustee should deliver over to the plaintiff all proceeds from the sale of the lumber, “without prejudice to such right or rights as the [plaintiff] may have against such person or persons or any of them.”