Security Insurance v. Superior Court

TYLER, P. J.

The petition shows that on or about the twenty-eighth day of August, 1923', one A. M. Winstead commenced an action in the justices court of San Rafael township, county of Marin, state of California, to recover the sum of $238.50. Said complaint contained the following allegations :

“That at the time of the injury hereinafter mentioned this plaintiff, as vendee, was in possession of the said automobile under contract of sale from H. G. Sirard, as vendor,

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and the Fairfax Bank was the holder by assignment of the contract of sale covering said automobile, all of which facts are set forth and appear by a rider attached to the policy of insurance hereinafter mentioned; that the amount of interest of said Fairfax Bank herein above mentioned in said assignment contract of sale is now $191.50.”

That there was attached to said complaint and made a part thereof the policy of insurance in suit, which contained the following clause: “It is understood that A. M. Winstead, as vendee, is in possession of the herein described automobile under contract of sale from H. G. Sirard, as vendor, and that the Fairfax Bank is the holder of a mortgage or is assignee of the contract of sale covering the said automobile. It is agreed that subject to all the terms and conditions of this policy, loss, if any, thereunder shall be payable as follows, to wit, first, to Fairfax Bank, mortgagee or assignee, to an amount not exceeding the indebtedness secured by said automobile at the time of loss; second, to H. G. Sirard, vendor, to an amount not exceeding the balance due at the time of loss upon the contract of sale above referred to; 3rd, to A. M. Winstead, vendee.”

The prayer of said complaint reads as follows: “Wherefore plaintiff demands judgment against the defendant for the sum of $238.50 and demands that said judgment when recovered be prorated between the plaintiff in the sum of $47.50, and the Fairfax Bank in the sum of $191.50, or such other sum as the court may find to be due to said Fairfax Bank at the time of said judgment, and for its costs of suit.”

It is further alleged in the petition that thereafter the defendant (petitioner herein) filed a demurrer to said complaint, specifying as a 'ground of demurrer that the court had no jurisdiction of the subject matter of said action, which demurrer was overruled by the justice of said court; that the defendant (petitioner herein) thereupon filed an answer in said action, and as a defense thereto averred that said court had no jurisdiction of the subject matter thereof; that the court thereupon proceeded to try the cause, and that at said trial evidence was introduced tending to prove that plaintiff therein had succeeded to the interests of the other parties to the indemnity bond; that petitioner (defendant therein) refused to put in any evidence, and judg