Mawby v. Lamb

PATROSSO, J. pro tem.

In this action upon a promissory note, plaintiff appeals from a judgment in favor of the defendants. No appearance has been made in this court upon

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behalf of the respondents and the matter has been submitted upon the appellant’s opening brief.

The promissory note in suit was executed by the defendants in favor of Lawrence S. Mawby. It is dated April 11, 1949, in the sum of $3,957, payable in monthly instalments of principal and interest in the sum of $35.03, beginning May 1, 1949. Three days after the note was executed it was by the payee deposited with the Security-First National Bank of Los Angeles (Long Beach branch) for collection, and remained in possession of the bank until surrendered to the receiver as hereinafter stated.

At the time of the execution of the note, appellant and Lawrence S. Mawby, the payee, were, and since 1926 had been, husband and wife, and continued to live together until their separation in November, 1947. Some time prior to May 16,1949 (the exact date does not appear), appellant instituted an action for divorce against her husband in the Superior Court in and for the County of Stanislaus, and on the latter date an amended complaint was filed therein in which the Security-First National Bank of Los Angeles was named as codefendant. The amended complaint, among other things, alleged that the bank had in its possession community property of the parties; that the defendant was absent from the State of California and would continue to remain absent therefrom; that unless restrained from so doing, he intended to and would dispose of and liquidate all of the community property and remove the proceeds thereof from the state for the purpose of depriving appellant of her community rights therein. In addition to other relief, the amended complaint prayed for the appointment of a receiver to take possession of all the community property of the parties within the jurisdiction of the court. Upon the filing of the amended complaint an order to show cause why such receiver should not be appointed and why an order for alimony pendente lite and attorneys’ fees- should not be made was issued as well as a restraining order restraining the defendant husband and the bank from transferring, assigning or otherwise disposing of any property of the parties. No service of the order to show cause or restraining order was had upon the defendant husband due to the fact that he was without the state, but the order was served upon the bank on May 20, 1949, and on the following day the bank advised the husband by mail of the service of the order upon it. In the meantime the defendants had paid to the bank the instalment of $35.03 due