Anderson v. Schloesser

SLOSS, J.

On November 11, 1904, the plaintiff, H. P. Anderson, commenced in the superior court of Lassen County an action against Amalia Schloesser to recover from her certain sums claimed to be due on account of her liability as a stockholder in Playden Hill Golden Eagle Mining Company, a corporation. A writ of attachment was issued, and was, on the twenty-eighth day of November, 1894, levied on the defendant’s interest in the Evening Star Mine. On August 28, 1905, the court gave judgment in favor of the plaintiff against the defendant Amalia Schloesser for $2,258.70 with costs and interest. It was in form an ordinary money judgment and contained the following recitals: “In this action the defendant, Amalia Schloesser, having been regularly served with process, and having failed

to

appear and answer plaintiff’s complaint herein, and the legal time for answering having expired, and no answer or demurrer having been filed; and by order of the court the default of said defendant having been entered in the premises according to law on the twenty-sixth day of August, 1905;” . . . This judgment was entered on August 28, 1905, and on the twenty-eighth day of October, 1905, all the right, title, and interest of Amalia Schloesser in said Evening Star Mine was sold under writ of execution issued in this cause.

On February 16, 1906, respondent, George F. Stone, filed and served upon the plaintiff a notice that he would move the court for an order substituting him as defendant in the place and stead of said Amalia Schloesser. The grounds of the motion, as stated in the notice, were: “That said action is an action to subject real estate within the state of California to the payment of an indebtedness of the plaintiff Amalia Schloesser; that said Amalia Schloesser was a nonresident of the state of California and is now dead, and that subsequent to the commencement of said action all the right, title and interest of the said Amalia Schloesser of, in and to said real estate has been transferred to the said George F. Stone, and that he is now the legal owner thereof.” Upon the hearing of the motion Stone offered in support of his" motion the affidavit of one Barry alleging that the action “is an

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action commenced against a non-resident of the state to subject certain real estate situated in the county of Lassen, . . . and known as the Evening Star Mine, ... to the payment of an alleged indebtedness of said defendant; that subsequent to the commencement of said action defendant transferred all her right, title and interest of, in and to said Evening Star Mine to George F. Stone, and that said George F. Stone is now the legal owner of said real estate; that affiant is informed and believes, and upon such information and belief alleges the fact to be, that the said Amalia Schloesser is now dead. ’ ’ In addition, Stone offered in evidence plaintiff’s complaint in the action. This was a complaint which alleged that the Hayden Hill Golden Eagle Mining Company was indebted on certain contracts to the plaintiff and that the defendant was the holder and owner of one half of the subscribed and issued capital stock of said corporation. It alleged further that the defendant Schloesser was a resident of the state of Illinois and the owner of an interest in the Evening Star Mine, and “that this action was brought for the purpose of subjecting said defendant’s interest in said mine or mining claim to the payment of such proportion of the indebtedness aforesaid as said defendant may be found legally liable for.” The complaint prayed judgment against said defendant for one half of the amount of the indebtedness of the corporation with interest. In opposition to the motion the plaintiff offered an affidavit stating that the action did not relate to or affect the title, the possession, or the right of possession of any real property, and setting forth the facts as to the issuance of the attachment, the recovery and entry of judgment, and the execution sale as hereinbefore stated. It further alleged that the conveyance to Stone was not made until the twenty-first day of January, 1905, after the levy of the writ of attachment. The court granted the motion for the substitution of Stone as defendant in place of Amalia Schloesser, and plaintiff appeals from the order so made.