Goldberg, Bowen & Co. v. Demick

TYLER, P. J.

This action is one brought to set aside certain conveyances of real property claimed to have been made for the purpose of defrauding creditors. It is in the nature of a creditors’ bill in equity.

The record is involved and voluminous and contains many facts which do not affect the questions here presented. We will therefore confine ourselves to a recital of such facts only as are necessary to discuss the points relied upon for a reversal.

On November 1, 1907, defendants Demiek and Blood executed certain promissory notes to plaintiff Goldberg, Bowen & Co., a corporation. These notes were subsequently merged in a judgment rendered in the superior court of the city and county of San Francisco on December 22, 1911, which was for the sum of $3,094.08 and costs. An appeal was taken therefrom, but the judgment was affirmed February 8, 1915, and a

remittitur

was issued to the court below thirty days thereafter. For some unexplained reason, but probably for failure to pay the fee, the

remittitur

was not filed by the clerk until September 16, 1919. On March 6, 1919, less than five years after the affirmance of the judgment, an execution was issued out of the superior court which was subsequently returned wholly unsatisfied. On November 8, 1919, an

alias

execution was issued to the sheriff of Kern County, but no return was ever made thereon. Thereafter, on November, 1919, supplementary proceedings were had under section 715, of the Code of Civil Procedure, at which time defendant H. H. Blood was examined, but the hearing failed to disclose the ownership of any property in him, and the order of examination was discharged. The examination did reveal, however, that he had disposed of his property through mesne conveyances to a corporation known as the Sterling Develop

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ment Company. Blood was the president of this corporation and owned all of its stock. Plaintiff thereupon on the twenty-eighth day of March, 1921, commenced this action against such corporation and the other defendants, among whom was C. C. Little and his wife, to obtain a decree establishing and determining that certain mining claims the property here involved held by them belonged to defendant Blood and had fraudulently been conveyed by him to Little and by mesne conveyances to the corporation to defeat plaintiff’s judgment. A