American Exchange National Bank v. Superior Court

California Court of Appeal Nov 17, 1915 No. Civ. No. 1848.Published

Before: Conrey

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Holding. The court held that the trial court erred in staying proceedings because garnishment notices served on the drawer of a check after the check has been issued do not create a valid basis for staying an action brought by the check's holder.

Issues

Whether a trial court may stay an action to recover on a check due to pending garnishment proceedings against the payee of said check.
Whether a drawer of a check can be garnished as a debtor of the payee after the check has been issued but before it is dishonored.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“If it is such legal owner, we can find no reason or rule of law under which it should be compelled to postpone realization upon its demand until the settlement of a controversy between its assignor and some one claiming to be his creditor.”

“Being of the opinion that the notices of garnishment relied upon by the respondent herein were not sufficient to impose upon the Title Insurance & Trust Company any liability affecting the chéck issued by it to Constantine”

Synopsis

APPLICATION for a Writ of Mandate originally made in the District Court of Appeal for the Second Appellate District directed to the Superior Court of Los Angeles County.

The facts are stated in the opinion of the court.

CONREY, P. J.

On petition for writ of mandate. An action numbered B-16,352 and entitled American Exchange National Bank of Duluth, Plaintiff,

Title Insurance & Trust Company, Defendant, was filed in the superior court of Los Angeles County on September 11, 1914, and is now pending. In that action the plaintiff seeks to recover a sum of money due upon a check assigned to it by one J. H. Constantine. This check was issued by the Title Insurance & Trust Company to Constantine on May 12, 1914, and was thereafter indorsed and transferred by Constantine to the plaintiff. The action was brought against the defendant company after presentation of the check by the plaintiff to the bank against which it was drawn and refusal of payment by that bank. The action of plaintiff against the Title Insurance

Trust Company came on regularly for trial on June 3, 1915, counsel for the respective parties being present in court. Thereupon the defendant moved the court for a stay of proceedings in the action until final determination of another action pending in that court, numbered B-25,383 and entitled Herbert Freston, Plaintiff,

J. H. Constantine, Defendant. An order was made granting said motion and in accordance therewith the superior court refused to proceed with the trial of the case. The petitioner alleges that by reason of said order and action on the part of the respondent, petitioner is unable to proceed with its said action and unless relief be granted in this proceeding the action cannot be tried until final judgment shall have been rendered in the Preston case.

The motion of the defendant Title Insurance & Trust Company for stay of proceedings in the action against it was made “on the grounds that the defendant in this action has been served with notice of garnishment in said case of Herbert Freston, plaintiff, against J. H. Constantine, defendant, as aforesaid, as will more fully appear by the affidavit marked ‘Exhibit A’ attached hereto and made a part hereof.” The affidavit shows that the action of Freston

Constantine was commenced on June 2, 1915; that a writ of attachment was issued in that action against the property of the defendant Constantine; that the writ, with notice of garnishment of

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American Exchange National Bank v. Superior Court

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Synopsis

CONREY, P. J.

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