Chase v. Blair

CARY, P. J.

The defendant Alfred G. Blair appeals from a default judgment rendered against him.

Plaintiffs brought this action to specifically enforce a contract between plaintiffs as vendees and the defendant

[745]

Blair as the vendor for the purchase of certain real property. Defendant First National Bank of Oceanside was made a party because it held in escrow the contract and deed involved. Defendant bank filed its answer denying the allegations of the complaint, and upon application to the court secured an order apparently under Code of Civil Procedure, section 386, substituting appellant Alfred Q. Blair (already a party defendant) and Susie A. Blair, his wife, as defendants in place of the bank, upon condition that the bank deliver to the court the documents held in escrow. This being done, a further order was entered discharging the bank from all liability to the parties. Defendant Alfred G. Blair having failed to answer the summons issued on the original complaint, a judgment was rendered against him for a small amount of money and also directing the clerk to deliver to plaintiffs the documents theretofore surrendered by the bank. No judgment was rendered against the substituted defendant Susie A. Blair.

Appellant contends that, when he was substituted by order of the court for the defendant bank, he was entitled

ipso facto

to the benefit of the denials contained in the answer of the bank then on file and that therefore no default could rightfully have been taken against him.

Had this been a substitution of parties, because of death or disability or because of the transfer of an interest in the subject matter of the litigation, as contemplated by Code of Civil Procedure, section 385, there would be force to this contention. But in the case at bar there was no mere substitution of one defendant as successor in interest of another, but rather the attempted substitution of defendant Blair, who did claim certain rights to the documents involved, in place of defendant bank, which claimed no interest in the documents whatsoever and whose only interest was to deposit these documents in court so that the real litigants might proceed to a determination of their rights. Clearly there was no privity of interest between the bank and the appellant by which appellant could claim the benefit of the denials of the bank’s answer. There was in reality no substitution at all, since the first sentence of section 386 is by its terms limited to the substitution of persons not a party to the action, while here appellant was a party from the inception of the proceedings.