Trounce v. Whittier Savings Bank

STURTEVANT, J.

This is an appeal from an order made in proceedings purporting to be supplemental to execution. Assuming merely for the purpose of this opinion that the record is sufficient, the facts material to this appeal, which are recited in the transcript, include the following. In the above-entitled action a judgment was rendered by default in favor of the plaintiffs and against the defendant corporation on July 16, 1928, for $2,700 and costs. Two different writs of execution were issued, but both were returned unsatisfied. The trial court was not asked for and it did not, so far as the record shows, make any order that any person appear and answer regarding any property held by him. (Code-Civ. Proc., sec. 717.) In some manner a purported deposition of A. C. Maple was taken before a notary on January 20, 1931. Thereafter on March 14, 1931, the plaintiffs served on said A. C. Maple and H. L. Perry a notice and an affidavit. The notice recited that on March 26, 1931, the plaintiffs would apply to the court for an order directing A. C. Maple to deliver to the sheriff twenty-nine and a half shares of stock in the First National Trust and Savings Bank of Whittier, or $14,012.50 in cash, and directing H. L. Perry in like manner to deliver five shares or $2,375. In the affidavit there are statements of these additional facts. Heretofore The Whittier Savings Bank was merged into the First National Trust and Savings Bank and the stockholders of the former received shares in the latter. A. C. Maple so received twenty-nine and a half shares and IT. L. Perry received five shares. The corporation commissioner of California did not authorize said transfer. The said individuals sold their stock to Merchants National Bank of Los Angeles for $475 per share. Another

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affidavit was filed from which it appears that The Whittier Savings Bank has never been dissolved and no agreement of merger, between The Whittier Savings Bank and First National Bank of Whittier, is on file in the office of the county clerk. On June 19, 1931, the court made an order denying the motion for an order requiring the delivery of the stock or money to the sheriff to apply on the judgment.

In the purported deposition of A. C. Maple it is recited that The Whittier Savings Bank was merged into the First National Trust and Savings Bank and that the latter received the assets of the former. It is also recited that by the merger the shareholders of the former received for their shares an equal number of shares in the latter. The record shows that A. 0. Maple and II. L. Perry so received the said shares of stock as the owners thereof and it does not show that either of said persons holds any property of The Whittier Savings Bank. Assuming that the order appealed from was made under section 719, Code of Civil Procedure, it was clearly correct.