Stafford v. Geary

KNIGHT, J.

This appeal was taken from an order rendered after final judgment in a supplementary proceeding instituted under the provisions of section 689 of the Code of Civil Procedure for the purpose of determining a third-party claim to an automobile theretofore seized by the sheriff pursuant to a writ of execution.

The following are the circumstances leading up to the rendition of said order: Early in the year 1926 or thereabouts the respondent Geary brought an action in claim and delivery against appellant to recover possession of the automobile which appellant was then holding under a claim of lien for work and labor performed thereon; and by virtue of the writ issued in said action the sheriff took the automobile in his possession. Besides answering, appellant filed a cross-complaint for the purpose of obtaining a judgment for the

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debt due him and to establish his lien on said automobile. As cross-defendants he named the respondents Geary, Skinner, Arnold and Ringole. The action was tried in February, 1926, and in September of that year judgment was entered on the cross-complaint in favor of appellant and against the cross-defendants for the sum of $849.51, and declaring a lien on said automobile in appellant’s favor until the debt was paid. From said judgment Ringole took an appeal and the judgment was affirmed

(Geary

v.

Stafford,

98 Cal. App. 84 [275 Pac. 865]), but for some reason not explained in the record before us the automobile was never redelivered to appellant. However, in February, 1930, approximately three and a half years after the entry of the original judgment, appellant, claiming to have discovered the automobile in the possession of the respondent Hammond, caused a writ of execution to be levied thereon; whereupon Hammond filed a third-party claim pursuant to said section 689 of the Code of Civil Procedure asserting ownership of the automobile and that he was entitled to the possession thereof. In response to such claim the supplementary proceeding above mentioned was had to determine the title to the automobile; and, as a result thereof and on March 20, 1930, the court entered its order, in the form of a judgment containing findings, adjudging and decreeing that ever since August, 1923, Hammond had been and was then the owner and entitled to the possession of said automobile, that the same was free and clear of all liens and encumbrances in favor of appellant created by the original judgment in the action, and that appellant had no right, title or interest therein; furthermore it was adjudged and decreed that the sheriff redeliver the automobile to Hammond, and that appellant be “perpetually restrained and enjoined from in anywise interfering with the possession” thereof.