Miller v. Price

PLUMMER, J.

This is an appeal by the plaintiff from a judgment in favor of the defendants upon the pleadings. The complaint in the action alleges that on and prior to the eleventh day of February, 1926, the plaintiff was the owner of certain real property situate in the county of Los Angeles, particularly described in the complaint; that said property was, at the date mentioned and at the date of the beginning of this action, of the value of $11,500, encumbered to the amount of $2,638, secured by a deed of trust payable on the seventeenth day of March, 1926; that on the eleventh day of February, 1926, the said defendants caused to be issued out of the Superior Court of the county of Los Angeles an execution in an action entitled “W. C. Price v. John P. Hight et al.,” and that acting under and by virtue of said writ of execution and under the instructions of said defendants as to.what property to levy upon, the sheriff of the county of Los Angeles did, on the thirteenth day of February, 1926, wrongfully and without right so to do, levy upon the property hereinbefore referred to; that at the time of the levy upon said property the plaintiff was negotiating for a loan of sufficient amount to satisfy the aforesaid encumbrance, and was at such time offering as security for the money to be loaned a deed of trust on the foregoing property, and that the plaintiff had no other means by 'which to obtain a sufficient, sum to satisfy said encumbrance; that by reason of said wrongful levy as afore

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said the plaintiff was unable to secure the money with which to satisfy the said obligation, and that on the thirtieth day of July, 1926, the trustees in said trust deed named sold said real property to satisfy the obligation referred to; that by reason of the foregoing wrongful acts on the part of the defendants the plaintiff has suffered damage in the sum of $8,862. To this complaint the defendants interposed both a general and special demurrer. The demurrer being overruled, the defendants answered, denying the ownership of the plaintiff, and set forth in their answer certain writings relative to the instructions given the sheriff, and the return of the sheriff that he had levied upon the interest of one L. B. Miller in the real property described in the plaintiff’s complaint. Thereafter the defendants, relying upon the provisions of section 448 of the Code of Civil Procedure, which reads: “When the defense to an action is founded upon a written instrument, and a copy thereof is contained in the answer or is annexed thereto, the genuineness and due execution of such instrument are admitted unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same and serve a copy thereof on the defendant,” interposed a motion for judgment on the pleadings. Judgment went for the defendants upon this motion. Irrespective of what we may say hereafter, it is clearly apparent that the basis assigned for the defendants’ motion is unsound. The writings referred to are waitings with which the defendants only were connected, and with which the plaintiff had nothing to do. Such writings, not being binding upon the opposite party, furnish no grounds whatever for a judgment against such party. If such papers are admissible at all in evidence" they are only in the case for what they are worth, and not as instruments binding upon the plaintiff in this action. Such papers are binding only upon the parties who have signed the same. This clearly appears from the following cases: