California Cotton Credit Corp. v. Superior Court

PLUMMER, J.

This cause is before us upon an application of the above-named petitioner for a writ of mandate to be directed to the respondent court, directing and requiring the recall of an execution issued upon a judgment in a certain action theretofore tried in the said court, known as and numbered “action 4587”, wherein one J. W. Gilstrap obtained a judgment against the petitioner in the sum of $410 and costs, and further praying that said court, and that the defendant J. W. Gilstrap, in said action, his agents and representatives, be enjoined and restrained from proceeding with an execution in said action until the further order of this court.

It further appears by the record that the California Cotton Credit Corporation, a corporation, has instituted an action in said court against the defendant, J. W. Gilstrap, to recover the sum of $1162.25, alleged to be the balance due upon a certain promissory note executed by the said Gilstrap to the California Cotton Credit Corporation, a corporation, secured by a chattel mortgage on growing crops and on certain personal property. The complaint in the action just referred to further prays that the judgment in favor of the defendant Gilstrap against the above-named corporation, as hereinabove mentioned, be set off and allowed as a credit upon the note and mortgage held by the California Cotton Credit Corporation, a corporation, against the said Gilstrap.

[406]

The facts as disclosed by the record show that during the month of March, 1931, J. W. Gilstrap executed a promissory note in favor of the California Cotton Credit Corporation, a corporation, for the principal sum of $3,600, and at the same time executed a chattel mortgage covering crops to be grown upon the premises described therein, and also including in the chattel mortgage the following personal property: “One Fordson tractor with plow attachments; one team of grey horses; one cotton planter; one riding cultivator; 1 section harrow; 2 sets of harness; 1 trailer; and one middle buster.” Upon this note the record shows that there has been paid the principal sum of $2,437.35. Thereafter, the petitioner in this action began a suit against the said J. W. Gilstrap, in claim and delivery, and took possession from the said Gilstrap of the following personal property:

“1 Roan horse, age 9, Wt. 1200#; 1 Bay horse, age 8, Wt. 1300#; 1 black mare mule, age 10, Wt. 900#; 1 grey mare mule, age 10, Wt. 850#; 1 bay mare mule, age 9, Wt. 900#; 1 bay horse mule, age 9, Wt. 900#; 1 ease tractor 15-27; 1 set double harness; 1 plow, John Deere 4-gang 10"; 1 Killifer disk; 1 planter; 1 John Deere cultivator; 1 cultivator; 2 sections spring-tooth harrow.”