Brown v. Howard

McLUCAS, J., pro tem.

This is an action for money had and received. Defendants appeal from a judgment rendered for plaintiff.

[533]

In the year 1922 an action was commenced by Leota Howard, one of the defendants herein, to foreclose a chattel mortgage, in which action the plaintiff and respondent was one of the parties defendant. Judgment was rendered against the plaintiff herein as defendant in that action. Execution was issued thereon and under the said execution the sheriff of Los Angeles County levied upon the property of the plaintiff herein and collected the sum of $907, which sum, on December 20, 1922, was turned over to Harry Lyons as attorney for the plaintiff in said action. Lyons testified that all of said money was immediately paid by him to Leota Howard, one of the defendants herein, except a sum not exceeding $100, which Lyons retained as his attorney’s fee. On January 5, 1923, upon stipulation of counsel in open court, it was ordered that the judgment in said cause be set aside and plaintiff therein given leave to file a supplemental complaint in said action. On January 6, 1923,, pursuant to the foregoing order, the court ordered the sheriff to release all property, money, or securities of any kind belonging to Lillian Brown and in the hands of any bank or trustee, which was levied upon by virtue of the writ of execution issued in said matter. On June 30, 1923, Harry Lyons, as attorney for plaintiff, and Harry K. Smith, as attorney for defendant Lillian Brown in said action, entered into a stipulation “that the complaint against Lillian Brown be dismissed, and that the said Leota Howard reimburse the said Lillian Brown in the sum of $900 and no interest from sums levied and collected in the within entitled action; that everything which is above the sum of $1,600, and any moneys collected by the plaintiff against the property of any of the defendants except Lillian Brown in excess of the said sum of $1,600 be immediately turned over to the said Lillian Brown until the sum óf $900 and no interest will be repaid to said Lillian Brown. That the attorney for the plaintiff file a dismissal against Lillian Brown, and that said Lillian Brown waiving any and all claims against Leota Howard in the within entitled action; except the sum of $900 to be paid as above provided.” The defendant and appellant subsequently paid to the plaintiff herein the sum of $118. In the present action the appellant Harry Lyons filed an answer denying the allegations of the complaint, and Leota Howard,