Bumiller v. Bumiller

RICHARDS, J.,

pro tem.

This is an action in which the plaintiff seeks to recover from the defendant the possession of 25 shares of stock of the Western Union Oil Company or its value, with damages for its detention. The plaintiff alleges in her amended complaint that being the wife of one Joseph F. Bumiller she commenced on March 14, 1914, an action against him in the county of Los Angeles for divorce and for a division of certain community property, of which the stock in question was alleged to be a portion; that in said action an interlocutory, decree was duly entered on June 18, 1914, wherein it was adjudged and decreed that said stock, which was then standing on the books of the corporation in the name of one D. A. MeGilvray, was the community property of the parties to that action; that the said stock had been pledged by said Joseph F. Bumiller to Arthur W. Bumiller, the defendant in this ease, as security for the payment to him of the sum of one thousand dollars, evidenced by a promissory note for that amount executed by Joseph F. Bumiller to said Arthur W. Bumiller; that a three-fifths interest in said 25 shares of stock was thereby awarded and set apart'to said plaintiff as her separate property and estate, and that the said Joseph F. Bumiller be and he was thereby ordered and directed to transfer or cause to be transferred to said plain

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tiff said three-fifths interest in said stock. The complaint proceeded to allege that the said Joseph F. Bumiller, not having complied with the said direction and order in said interlocutory decree, proceedings for contempt were instituted by said plaintiff against him, in which proceedings the court again ordered said defendant Joseph F. Bumiller to transfer her three-fifths interest in said stock to plaintiff, subject to the pledge of the whole thereof to said Arthur W. Bumiller as security for the said note which the defendant Joseph F. Bumiller was directed to pay; that upon being served with a copy of this latter order said Joseph F. Bumiller made, executed, and delivered to plaintiff an assignment of an undivided three-fifths of said stock; that thereupon and on December 21, 1914, the plaintiff herein made a written tender to said Arthur W. Bumiller of the amount of the principal and interest of the said promissory note as the security for the payment of which the whole of said stock was pledged; that said Arthur W. Bumiller, without objecting to the form or amount of said tender, refused to accept the same, whereupon the plaintiff deposited the amount thereof in the Citizens’ National Bank of Los Angeles to the credit of the said defendant herein, Arthur W. Bumiller, and notified him of the fact of said deposit; that thereafter, and at various times prior to the institution of this action, the plaintiff made other and similar written tenders of payment in full of said note to the defendant herein, copies of all of which tenders were attached to and made parts of the complaint; that the only objections which said defendant made to any of such tenders was the objection that such tenders did not provide for the protection of the defendant, Arthur W. Bumiller, against any claims which D. A. McGilvray may have to said stock arising out of the fact that it stood in his name upon the books of the corporation, and the further objection that Joseph F. Bumiller had instructed said Arthur W. Bumiller to turn over no property of his to said plaintiff without a written order from him. The plaintiff further avers that the said defendant still holds said stock in his possession and refuses to deliver any portion thereof to the plaintiff, and that the value of the stock is the sum of three thousand dollars. Wherefore, the plaintiff prays judgment that she is entitled to the possession of said note and of said stock, and that said defendant be required to deliver the same to her or pay the