Ambrose v. Alioto

GRIFFIN, J.

Plaintiffs brought suit in the Superior Court of San Diego County for specific performance of a certain agreement entered into between them and defendant Mary Alioto with respect to a fishing vessel named Dependable, which was enrolled under the name of Mary Alioto, as owner. On September 24, 1943, judgment was entered in favor of plaintiffs. By the terms of the judgment defendant was required to execute a bill of sale conveying to plaintiff Annie L. Ambrose a one-half interest in the vessel, and to plaintiff Joe Alioto a one-tenth interest. The judgment further contained the following provision:

“Now, Therefore, It Is Ordered, Adjudged and Decreed, that the defendant Mary Alioto and all persons under her control, at her direction or on her behalf, be and the said defendant and all such persons are hereby enjoined and restrained from delivering to Sun Harbor Packing Company, or to anyone other than Westgate Sea Products Co., any fish caught on any fishing voyage made by the vessel Dependable."

Neither Sun Harbor Packing Company nor Westgate Sea Products Co. was named as party plaintiff or defendant in

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the action. Notice of appeal from that judgment was filed October 1, 1943. At that time defendant executed the bills of sale above mentioned and deposited them with the clerk under the provisions of section 944 of the Code of Civil Procedure to abide the judgment of the appellate court. Due notice was given respecting the reporter’s and clerk’s transcripts.

It is alleged in the petition that the purpose of defendant in .defending the action in the lower court and in prosecuting her appeal was to have her title in the Dependable quieted against the respondents; that the Sun Harbor Packing Company and Westgate Sea Products Co. are both canners of fish in the port of San Diego; that there are at least two other canners in that port and many others in the Los Angeles port; that the supply of raw fish is limited and there is competition among the canners to obtain catches from fishing vessels; that the prices paid for such fish by canners are governed by federal ceiling regulations and fish brings the same price from one as from another; that shortly prior to the commencement of this action defendant was in actual and exclusive control of the vessel and the only person appearing on the records of the United States Customs Office as entitled to management of it; that until May 6, 1943, Westgate Sea Products Co. held a contract for delivery of all catches of fish to such cannery, but such contract expired on that date, and thereupon defendant, as such owner, contracted to deliver the catch of such vessel thereafter to Sun Harbor Packing Company, and during the pendency of such action she continued to make delivery to Sun Harbor Packing Company and desires that such delivery shall continue; that the master of the vessel at the time of the commencement of this action and ever since has been under standing orders to operate it in the fishing industry and to deliver all catches of fish to Sun Harbor Packing Company; that at the time of the filing of this action the vessel arrived in the port of San Diego with a load of fish and proceeded to deliver it to Sun Harbor Packing Company in fulfillment of such contract, but plaintiffs obtained a restraining order from the Superior Court enjoining her from delivering to Sun Harbor Packing Company or to anyone except Westgate Sea Products Co. more than 40 per cent of the fish caught on such voyage; that accordingly, 60 per cent was delivered to West-gate Sea Products Co. and 40 per cent to Sun Harbor Pack