Gregg v. Stark

California Court of Appeal Dec 28, 1932 No. Docket No. 8664.Published

Before: Dogling

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Holding. The court held that the judgment against the appellant was improper because the original borrower was not a party to the action and the assignee was not properly served regarding the specific issues adjudicated, making the assignee an indispensable party.

Issues

Whether the original borrower and his assignee were necessary and indispensable parties to the action for the judgment to be binding.
Whether the court's findings regarding the loan and assignment exceeded the scope of the issues presented in the complaints served upon the assignee.

Disposition. reversed

Quotations verified verbatim against the opinion

“The findings went outside the issues so made and adjudicated the priority of the lien claimants in moneys due from appellant to Stark on a loan made to Disterheft and by him assigned to Stark.”

DOGLING, J.,

pro

tem.

This appeal is prosecuted upon the judgment-roll by Wilshire Mortgage Corporation from certain portions of a judgment entered against appellant in nine separate mechanics’ lien cases which were consolidated for trial. The actions were instituted by various persons claiming liens on the real property described in the complaints, and in some of the complaints it was alleged that Wilshire Mortgage Corporation, the appellant here, had made the defendant Milford G. Stark a loan of $20,000, for the purpose of enabling said Stark to erect and construct the improvements on the property described in the complaint, which loan was secured by a deed of trust of said property; that Wilshire Mortgage Corporation had paid out $10,000 of said loan and the balance of $10,000 was held by Wilshire Mortgage Corporation for the use and benefit of Stark and as a trust fund for the payment of lien claimants. Those complaints containing such allegations prayed that Wilshire Mortgage Corporation be required to pay said sum into court for the benefit of the lien claimants.

Wilshire Mortgage Corporation by its answer denied that it made any loan to Stark but alleged that it did make a loan as described in the complaint to Arthur H. Disterheft and alleged that the whole thereof was immediately advanced and paid out to Disterheft.

The court found that the contract to loan $20,000 was made with Disterheft as alleged in appellant’s answer; that Disterheft gave appellant his promissory note for that amount secured by a deed of trust of the property in question executed and delivered by Disterheft; that Disterheft thereafter assigned to Stark his interest in the moneys accruing from said loan in the hands of appellant and that $2,663.13 of said loan remained undisbursed and in appellant’s possession. By the portion of the judgment appealed from the court ordered appellant to pay into court the said sum of $2,663.13 for the benefit of certain lien claimants and also gave judgment against appellant for certain costs.

[436]

The case was ordered submitted on appellant’s opening brief, no brief ever having been filed herein on behalf of any of the respondents.

Gregg v. Stark

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DOGLING, J.,

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