Israel v. Superior Court

SHAW, J.

This is an original application for writ of mandate to compel the superior court of San Diego County to render a judgment for three thousand dollars in favor of petitioner in a certain action wherein she was plaintiff and Solon Bryan was defendant.

The controversy grows out of the following facts: On the eleventh day of February, 1918, petitioner deposited with Solon Bryan, who was a justice of the peace, the sum of three thousand dollars to secure the appearance of F. M. Couden at a preliminary hearing upon a (Criminal charge. As a result of the hearing, held on February 21, 1918, Couden was discharged from custody and his bail released. On the same day, and after dismissal of the criminal complaint filed against him and prior to the return of said bail money so deposited with said justice of the peace, there was served upon him, the said Solon Bryan, by the sheriff of the county of San Diego, a writ of execution issued out of the superior court upon a judgment theretofore rendered against F. M. Couden in a certain action wherein the First National Bank was plaintiff and the former was defendant. Thereupon Bryan, upon demand made by petitioner for the return of the three thousand dollars so deposited by her as bail for the appearance of said Couden, refused to pay the same to petitioner, who, on April 8, 1918, brought suit against Bryan to recover the money in question. Within due time Bryan answered the complaint; whereupon petitioner, as plaintiff in said

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action, made a motion for judgment on the pleadings, which was heard on May 20, 1918, and an order made denying the same. Thereupon Solon Bryan, as defendant in said action, applied to the court for permission to withdraw the answer so filed and file another answer to the complaint. This application was granted and Bryan allowed five days to file another answer. Within the five days allowed for filing such answer Bryan filed an affidavit and notice of motion, under section 386 of the Code of Civil Procedure, to substitute the sheriff of San Biego County and the First National Bank in his place and stead as defendants in said action, which motion was heard on May 24, 1918, and an order made granting the same, pursuant to which Bryan deposited in court the three thousand dollars which action was followed by an order releasing him from further liability, and at the same time the sheriff and First National Bank, as substituted defendants, filed their answer. No further proceedings of any kind or character were had in said matter until a year thereafter, to wit, on May 31, 1919, at which time the case was tried upon the complaint and the answer of the substituted defendants, when findings were made upon which judgment was rendered by the court that petitioner, as plaintiff in said action, take nothing and the defendants recover $-, costs. Thereafter, on June 11, 1919, pursuant to notice served, and in the absence of any order made setting aside or otherwise affecting the judgment so rendered, petitioner moved the court to enter judgment in said action for the plaintiff therein and against Solon Bryan, upon the ground that said Bryan having by leave of court withdrawn the answer filed, was in default, and hence plaintiff was entitled to judgment. The motion was denied. The contention of petitioner is that the order granting Bryan five days from May 20, 1918, to file an answer, was void, as were likewise the orders made releasing him from further liability upon depositing the said three thousand dollars in court and substituting as defendants in said action the sheriff and First National Bank.