Elam v. Arzaga

SPENCE, J.

In this action in ejectment and to quiet title defendant had judgment, from which judgment and the order denying plaintiff’s motion under sections 663 and 663a of the Code of Civil Procedure plaintiff appeals.

The background of this litigation is found in the dealings of plaintiff, an attorney at law, ' with certain Mexicans who had little ability to understand the English language and had little or no ability to understand the significance of the documents and proceedings to which reference is hereinafter made. One Lopez loaned the sum of $65 to one Tapia. When the loan was made to Tapia, defendant Arzaga orally agreed to pay Lopez if Tapia did not do so. The money was not repaid and Lopez consulted plaintiff, who had his office with the Universal Adjustment Company, a collection agency. It appears, as found by the trial court,, that plaintiff and G. C. Dilsaver were partners conducting said collection agency, although plaintiff testified, when asked if he was a partner, that he did not know

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whether he was or not; that he was “at one time or was supposed to be”. Lopez signed a rather unusual document which appears to be the form used by the Universal Adjustment Company. We will assume, as contended by appellant and as found by the trial court, that the instrument constituted an assignment of Lopez’ claim to the Universal Adjustment Company for the purpose of collection. By this instrument Lopez agreed to pay to the collection agency a commission on the amount collected. An action was filed in the justice court in the name of Mary Dilsaver, doing business under the name of Universal Adjustment Company, as plaintiff, against both Tapia and this defendant. Said Mary Dilsaver was the wife of said G. C. Dilsaver. Prior to the commencement of the action and shortly thereafter plaintiff collected from Lopez a total of $30' to defray costs in the action. Both defendants named in the justice court action defaulted and on June 15, 1925, judgment was entered against them. Thereafter execution was issued and without any actual notice to defendant herein or to Lopez, the real property of defendant involved herein, having two houses thereon together with certain property of Tapia, was advertised for sale by the constable. Plaintiff appeared at the constable’s sale on September 30, 1925, and bid in all of said property in the name of Mary Dilsaver, the nominal plaintiff in the justice court action, for the sum of $99.37. Lopez repeatedly called to see plaintiff regarding the progress of his claim, but received no money and was given discouraging reports concerning the prospects. One of his visits occurred on September 29,1926, being within twenty-four hours of the expiration of the year of redemption upon the sale on execution. Lopez testified that plaintiff had never told him that the Arzaga property had been sold on execution to Mary Dilsaver, the nominal plaintiff in the justice court action, or that Lopez had any interest therein, but on the visit mentioned plaintiff told Lopez “he was not sure whether they would get anything”. Without full knowledge of the proceedings, Lopez, while in need of funds to pay on an installment contract, and while discouraged by the reports which had been given him, agreed to accept $50 from plaintiff for the justice court judgment. Plaintiff herein did not pay the money at that