Morton Gas Engine Co. v. California Seeded Raisin Co. (1914) · DecisionDepot

Morton Gas Engine Co. v. California Seeded Raisin Co.

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

California Court of Appeal Apr 22, 1914 No. Civ. No. 1340.Published

Before: Richards

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Holding. The court held that a motion to set aside an execution and sale is not the proper proceeding to challenge a voidable judgment or to litigate claims of breach of fiduciary duty by a corporate officer who purchased property at such sales.

Issues

Whether a voidable judgment can be assailed via a motion to set aside an execution.
Whether a motion to set aside an execution is the appropriate proceeding to challenge the conduct of a corporate officer who purchased property at an execution sale.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule would seem to be well settled that upon a motion to set aside an execution, the voidable judgment upon which the execution has been issued cannot be assailed”

“this latter question is one which cannot be presented upon a motion to set aside executions and sales not otherwise shown to be irregular, but only in an appropriate proceeding in equity to establish and enforce the trust.”

Synopsis

APPEAL from an order of the Superior Court of Fresno County sustaining a demurrer. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

[363]

RICHARDS, J.

This is an appeal from an order sustaining respondent’s demurrer to a petition of the appellants for an order setting aside certain sales of personal property under several executions.

The facts as disclosed by the petition are briefly these: In March, 1910, the Morton Gas Engine Company commenced this action against the California Seeded Raisin Company, a corporation, to recover a debt amounting to $384.25. The summons was regularly issued and served upon Newton B. Converse, the president of the defendant corporation. It is averred that Converse was acting in collusion with the plaintiff in respect to said action, in pursuance of which he not only permitted a judgment by default to be entered against the defendant, but also concealed the fact of the institution and pendency of the action from the knowledge of his fellow officials until some time after the entry of such judgment. It is further averred that an execution was issued upon such judgment, and levied upon certain specific personal property of the defendant, which was of the alleged value of one thousand two hundred dollars, and which property was thereafter sold under such execution to the plaintiff for the sum of one hundred dollars, who immediately transferred the same to said Converse for a like sum; that said Converse also purchased from the plaintiff the deficiency judgment, and proceeded to have the two other executions successively issued thereon and levied upon other personal property of the appellant, which property was also sold at successive execution sales, and bought in either by said Converse or by some person acting for him, at sums very much below the real value of the property. It is averred that Converse acted fraudulently throughout these several proceedings, and that they are therefore void, and that he and his successors in the apparent ownership of these several pieces of personal property hold the same as trustees for appellant.

The prayer of the petition is that all of the acts and things done by said Converse in the course of these proceedings be held to be fraudulent and void, and that said sales and each of them be set aside, and that the petitioner have general relief.

To this petition filed in the original action, and being in effect a motion to quash these executions and set aside the

Morton Gas Engine Co. v. California Seeded Raisin Co.

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Synopsis

RICHARDS, J.

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