Pioneer Investment & Trust Co. v. Muncey

JAMES, J.

This is an appeal from orders made by the superior court upon proceedings had supplemental to execution. Plaintiff, a judgment creditor of defendant Muncey, having prepared an affidavit which was filed in the superior court, secured an order requiring the appearance of the judgment debtor and the Law Credit Company, a corporation. The affidavit set out the date of the recovery of the judgment, the fact that execution had been issued, and placed in the hands of the sheriff of the county of San Bernardino ; that the sheriff had levied upon money in the hands of one "William Thompson, a resident of the county of San Bernardino, which money the affiant alleged upon information and belief was the property of Muncey; that Thompson had made return admitting indebtedness to Muncey in the sum of $550; and that he held such money subject to the order of court. The facts regarding the matter of Thompson’s indebtedness to Muncey were then set out. It was stated in the affidavit that Muncey had recovered a judgment against Thompson which had become final, but that prior to the making of the levy under this plaintiff’s execution, wherein Thompson was served with the writ, Muncey had assigned the judgment so obtained in his favor to the Law Credit Company. It was then asserted in the affidavit that the assignment was fraudulent and made for the purpose of preventing satisfaction being obtained of this plaintiff’s judgment. On May 3, 1915, the transcript shows, the court made the following minute order: “Matters of examination concerning property regularly called. Thos. Ball, Esq., appearing as attorney for plaintiff and S. W. Odell, Esq., for defendant. R. E. Muncey is sworn, examined and discharged.” On May 5th, what purports to be an order

nunc pro tunc

was made in the same matter by the court. It was recited therein that Muncey and the Law Credit Company having appeared on the third day of May, 1915, and having been examined concerning matters relative to the judgment which was assigned

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by Muncey to the Law Credit Company, it was ordered that the plaintiff be given leave to file and prosecute an action against the Law Credit Company to vacate and set aside the assignment, and that the defendant Muncey and the Law Credit Company be forbidden to further transfer the judgment, have execution issued thereon, or to do anything in the premises until the further order of the court. It appears that the Law Credit Company immediately thereafter moved to set aside the order so purporting to have been made