California Cotton Credit Corporation v. Superior Court

THE COURT

Petitioner commenced an action in the justice’s court to recover from respondent Gilstrap certain personal property consisting of horses, mules and farming implements of which he claimed to be the owner and which were then in the possession of Gilstrap. The ordinary procedure was followed and on the demand of petitioner the said property was delivered to it. Respondent Gilstrap in that action claimed the ownership of said property and judgment was rendered in his favor for the return of said property, or if return thereof could not be had, for its value in the sum of $299 and for $109 damages for the taking of the same and $6 costs. This judgment was rendered November 10, 1931. Petitioner appealed to the superior court' and that court again rendered judgment in favor of respondent Gilstrap for the return of said property, or in default thereof for its value in the sum of $299 and for $110 damages for taking and withholding the same, and for his costs in the sum of $8.20. The date of this judgment is February 8, 1932. It has become final. None of said property has been returned to said Gilstrap.

On the tenth day of November, 1931, petitioner commenced an action against said Gilstrap for the balance alleged to be owing it by Gilstrap on the promissory note, the amount of said alleged balance being $1162.50.

On March 5, 1932, petitioner moved the court to stay the execution on the judgment theretofore rendered in favor of Gilstrap until the final determination of the action then pending, but not at issue, brought by petitioner against Gilstrap to recover the alleged balance on said note, in order that, petitioner could then set off the judgment so to be obtained against the said judgment rendered in favor of Gilstrap, alleging in said motion that respondent was insolvent. This motion was denied.

Thereupon this proceeding was commenced wherein petitioner applied to this court for a writ of mandate, setting

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forth in his verified petition therefor the aforesaid facts. Upon the filing of said petition this court caused to be issued an alternative writ of mandate requiring respondents to show cause why the relief prayed for in said petition should not be granted.

Thereupon respondent Gilstrap filed his answer to said petition and attached thereto his affidavits theretofore filed in opposition to the said motion to stay the execution. In these affidavits he alleged that he had paid the said promissory note in full and that an accounting between him and petitioner would show that petitioner was owing him upwards of $1,000.