McLean v. Mooser

California Court of Appeal Oct 16, 1922 No. Civ. No. 4238.Published

Before: Langdon

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Holding. The court held that an attempted pledge of property by parties who did not own or control it was void, and that any error in allowing an intervention by the true owner was not prejudicial to the defendants given their admission of the owner's title.

Issues

Whether an attempted pledge of property by parties lacking title or control is legally valid.
Whether the trial court erred in permitting an intervention by the true owner of the pledged property.
Whether any error in allowing the intervention was prejudicial to the defendants.

Disposition. affirmed

Quotations verified verbatim against the opinion

“their action was void of legal effect, because they had neither title to said property nor control of the same for the purpose of pledge or transfer, nor for any other purpose.”

“it follows that no legal pledge was ever made of the jewels, and the trial court was correct in its finding upon this question.”

“Conceding that the facts did not show a case entitling Florence B. Mooser to intervene in the action, we fail to see how the error in this matter was prejudicial to the defendants.”

LANGDON, P. J.

This appeal is taken by the defendants from a judgment against them in an action upon a promissory note for $1,598, signed by them jointly, payable to Messrs. Dudley and McLean and by them assigned to plaintiff.

The complaint was the usual one to recover upon a promissory note. The answer alleged that at the time of the execution of said note it was secured by a pledge of certain jewels; that the original payees of the note sold said jewels ■for a sum in excess of the amount of the note and have refused to account to defendants for the- sale or to pay over the surplus to defendants; that no notice was given by the pledgees to the pledgor of the time and place of the sale of the pledged property and that the said property was not sold in accordance with the provisions of the law of this state. As a separate defense, defendants alleged the pledge of said jewels and that said jewels were being held by said Dudley and McLean, original payees of the note; that defendants have demanded the sale of said jewels and the application of the proceeds thereof to the payment of the note, but that said Dudley and McLean have refused to comply with said demand; also that defendants have demanded a return of said pledge upon the payment of the amount of the note and have offered to pay the amount of the note with interest upon the return of said pledged property. Defendants pray that the court order the said Dudley and McLean to return said personal property or make a sale thereof in accordance with law and account for the proceeds thereof.

The trial court made an order permitting the filing of a complaint in intervention by Florence B. Mooser. This

[347]

complaint alleged that intervener was the owner and entitled to the possession of the jewels in controversy; that Messrs. Dudley and McLean and Louis H. Mooser, Jr., and Louis H. Mooser, Sr., on or about the fourteenth day of July, 1919, without intervener’s consent and wrongfully, came into the possession of said personal property and took said personal property from the possession of said intervener; that intervener had never allowed, permitted, or consented to or authorized any person whomsoever to assume the apparent ownership of said personal property for the purpose of making any transfer of any character whatever of said property; that intervener had demanded of Messrs. Dudley and McLean the return of said personal property which had been refused, and, thereafter, intervener had commenced an action in claim and delivery in the superior court in and for the county of Placer, state of California, against said Dudley and McLean and had recovered possession of said personal property. A certified copy of said judgment in claim and delivery was attached to the complaint in intervention. It was then alleged:

McLean v. Mooser

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LANGDON, P. J.

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