Colyear v. Superior Court (1919) · DecisionDepot

Colyear v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 27, 1919 No. Civ. No. 2964.Published

Before: Shaw

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Holding. The court held that a judge in supplementary proceedings lacks jurisdiction to order a third party to deliver property to a judgment creditor when that third party claims an interest in the property adverse to the judgment debtor.

Issues

Whether a court may order a third party to deliver property to a judgment creditor in supplementary proceedings when the third party claims an interest in said property.
Whether prohibition is an appropriate remedy to prevent a court from holding a third party in contempt for refusing to comply with an order issued in excess of jurisdiction.

Disposition. Peremptory writ of prohibition granted.

Quotations verified verbatim against the opinion

“The law does not authorize the trial of the rights of a third party claiming property adverse to a judgment debtor in this summary manner.”

“The court acted in excess of its jurisdiction in making the order requiring petitioner to deliver possession of the property to plaintiff in said action.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

J.—Prohibition. As appears from the verified petition, to which respondent has interposed a general demurrer and an answer, A. H. Mitchell, then in the possession of certain household furniture and furnishings, did, on September 4, 1918, deliver the same to petitioner who, as a warehouseman, received the same on storage for hire and issued a non-negotiable warehouse receipt therefor. Thereafter the sheriff of Los Angeles County, under and by virtue of an execution issued upon a judgment rendered by the superior court of Los Angeles County in an action to which petitioner was not a party, brought therein by Harry Perkins against A. H. Mitchell for the possession of the goods, made demand upon petitioner for the delivery of the same to him, with which demand petitioner refused to comply, unless he produced an order therefor from Mitchell and paid the storage charges. Thereupon an order was issued in said action by respondent, copy of which was duly served upon petitioner, requiring him to appear in said court to answer concerning said property. Upon the appearance of petitioner in response to said order, a hearing was had wherein an order was made as follows: ■“Harry Perkins vs. A. H. Mitchell. In the matter of the order for appearance of A. H. Mitchell, judgment debtor, and the order for Colyear Van & Storage Company to appear and answer concerning property, which comes on now to be heard, F. Horowitz and Mabel W. Willebrandt appearing as attorneys for the plaintiff and H. 0. Wackerbarth appearing for the defendant, it appearing that Colyear Van & Storage Company has the property described in the complaint, and is holding the same as the agent of defendant, it is ordered that said Colyear Van & Storage Company deliver said property to the plaititiff within 10 days. ’ ’ Petitioner, claiming an interest in the property, refuses to comply with the order, by reason whereof respondent threatens to and will, unless prohibited by this court, adjudge petitioner guilty of contempt and commit him to jail as punishment therefor.

[1]

Petitioner was not a party to the action of Perkins

Mitchell, and the order made requiring him to deliver to plaintiff therein the goods in which he claimed an interest was

[464]

Colyear v. Superior Court

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Synopsis

SHAW, J.

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