Parker v. Howe

THE COURT.

Action for money had and received. The facts out of which the action arose are somewhat involved. On the tenth day of June, 1912, one of the plaintiffs herein, Emma Parker, obtained a judgment in San Francisco against her then husband Jack W. Parker in a divorce action, wherein she was awarded the sum of $40 per month for the support of herself and her minor child. Some thirteen years thereafter, in May, 1925, she obtained an order directing the issuance of an execution upon such judgment in the sum of $4,360, the same being alleged to be the accumulated amount due her upon the judgment above mentioned. The defendant, Jack W. Parker, moved to set aside the order directing execution and levy thereunder. This motion was denied by the trial court, but an order was made directing the modification of the execution to $1200. Plaintiff appealed from the order modifying the execution, and defendant also appealed, claiming the entire proceeding was unauthorized and void. Notwithstanding the appeal, an execution had been levied upon certain funds in the Bank of Italy in Sacramento on a deposit in the joint names of Jack W. Parker and Mary Helen Parker, the latter being his second wife. Mary Helen Parker claimed this money as her separate property.

On June 4, 1925, and while the appeal from the order issuing the execution was pending, Emma Parker commenced an action in the nature of a creditor’s claim against Jack Parker and his second wife, Mary, the People’s Bank and the Bank of Italy, to recover $4,360 unpaid on the judgment above referred to. It was alleged in this action that plaintiff had obtained a judgment of divorce against

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Jack W. Parker and for accumulated alimony amounting to the sum of $4,360; the issue and levy of execution for said amount upon moneys in the Bank of Italy; the claim of May Helen Parker to said money thus preventing the satisfaction of said judgment by execution; that the claim of Mary Helen Parker was unfounded; and it was prayed: 1. That the claim of Mary Helen Parker be adjudged fraudulent and void; 2. That said money, property and securities be adjudged subject to the lien of plaintiff's judgment; 3. For the sum of $4,360 with interest. Jack W. Parker and Mary Helen Parker filed answers in the action. Judgment went for plaintiff, it being found, among other things, that Mary Helen Parker had no interest in the property except a community interest with her husband, and that the money and a certain bond were subject to the execution under plaintiff’s judgment in the divorce action, and the same should be applied in satisfaction thereof. The court further found that the property was subject to a lien of plaintiff’s judgment and execution, and that plaintiff was entitled to have the same applied to the satisfaction thereof. It was thereupon ordered and decreed that the defendants Jack W. Parker and his wife, Mary Helen Parker, assign, transfer and pay to Emma Parker the sum of $1983.87 and that they deliver up the bond of the value of $1000 to a commissioner of the court. No appeal was taken from this judgment and it was thereafter assigned to appellant bank.