Societa Di Mutuo Socorso v. Mantel

HARRISON, P. J.

In the complaint herein the plaintiff alleges that in 1896 the appellants Mantel et al. recovered a judgment in the superior court of San Francisco against their co-defendant Figone for $2,230, upon which an execution was issued, by virtue of which the sheriff of San Francisco levied upon any moneys in their hands that might be owing from them to said Figone, and that the said execution was thereafter returned wholly unsatisfied; that in January, 1900, Figone recovered a judgment against the plaintiff in said superior court for the sum of sixty-three dollars; that the defendant Splivalo claims that the moneys so adjudged to be due from it to Figone were assigned to him prior to the entry of said judgment, and prior to the levy of the execution in favor of the appellants; and that since said assignment he has been the owner thereof, and claims that he is entitled to receive the amount of said judgment from the plaintiff; that it still has said money and is ready and willing to pay it to the one entitled thereto, but that by reason of the said conflicting claims it does not know to whom it should pay the same. It therefore asked that all of the defendants appear and set forth their respective rights to the said money, and that the court determine which party is entitled to the same.

The appellants answered the complaint, setting forth certain facts, showing the judgment in their favor against Fig-one, and that after the garnishment upon the plaintiff by virtue of said judgment they had instituted proceedings supplementary to the execution issued thereon, and that in such proceedings the superior court had determined that the plaintiff was indebted to Figone in the sum of sixty-three dollars, and had made an order that the plaintiff immediately pay said sum of money to these appellants, in partial satisfaction ot their judgment against Figone; that said order had not been appealed from or set aside, but was in full force and effect, and had become final. That by reason thereof the plaintiff is estopped from denying its indebtedness to them in said sum of sixty-three dollars, and from alleging that there is any controversy as to whom it should pay the same. They also

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allege that the defendant Splivalo has no right to or interest in said money; that he had knowledge and notice of said supplementary proceedings, and refused to attend or be present at the examination therein of the plaintiff, and that by reason thereof he is estopped from making any claim thereto, and from denying that they are entitled to receive the same. The defendant Splivalo, in his answer to tiie complaint, alleged that he was the holder and owner of the judgment in favor of Figone against the plaintiff by virtue of an assignment from Figone prior to its entry of the claim upon which it was rendered.