Blake v. Arp (1920) · DecisionDepot

Blake v. Arp

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jul 28, 1920 No. Civ. No. 3264.Published

Before: James

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Holding. The court held that the defendant could not enforce a claim for contribution under section 709 of the Code of Civil Procedure because he failed to file the required notice within ten days, nor could he set off the paid judgment against the plaintiff's judgment because a satisfied judgment no longer exists to be offset.

Issues

Whether the defendant properly invoked the statutory procedure for contribution under section 709 of the Code of Civil Procedure.
Whether a satisfied judgment can be used as a set-off against another judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“The procedure adopted by the defendant Arp was not one appropriate to enforce contribution under the provisions of section 709 of the Code of Civil Procedure, for it does not appear that he proceeded as required under that section.”

“If the judgment has been paid it is satisfied; hence there is no judgment which the court may credit to the moving party upon his judgment debt in another action.”

Synopsis

The facts are\ stated in the opinion of the court.

JAMES, J.

Both plaintiff and defendant appear as appellants in this action, neither being satisfied with "the order made in the superior court.

On the twenty-fifth day of October, 1915, plaintiff obtained judgment against the defendant for a considerable sum of money. On the third day of June, 1919, plaintiff assigned this judgment to one Cohn. On January 9, 1917, in an action brought against the plaintiff and defendant and one Hewitt, judgment was recovered in the sum of $1,050, with interest and costs. An appeal was taken from that judgment by defendant Arp, and the judgment was thereafter affirmed .and it was fully paid by Arp about July 1, 1919. In the transcript there appears a notice of motion, made under the title of the first-mentioned action, which notice recited that Arp “will on Monday, the four

[716]

teenth day of July, 1919, . , . move the said court for an order directing the clerk to enter partial satisfaction in the sum of $1,313.30 of the judgment heretofore entered herein in favor of the plaintiff and against the defendant for the sum of $2,100, together with interest and $138.85 costs. . . . Said motion will he made on the ground that the defendant has paid on account of the judgment entered in the action the sum of $1,313.30 in satisfaction of the judgment recovered in the said action of

Ransch

Arp

and on the ground that the judgment in the last-mentioned action was for the recovery of the debt ■ which was owing and payable by the plaintiff herein and not owing by the defendant herein, and which in equity and good conscience ought to be paid by the plaintiff herein. ’ ’ This notice appears to be dated July 7, 1919, but the record does not disclose the date of filing thereof by the clerk. The record does show, however, that the motion came on to be heard on the second day of September, 1919, and the court made its order, being the order from which the appeals are taken herein. This order directed “the clerk of the court to enter partial satisfaction of the judgment herein to the extent of the sum of $437.77, being one-third of the amount paid by said Arp in full satisfaction of the judgment entered in the said action of

Blake v. Arp

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Synopsis

JAMES, J.

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