Hibernia Savings & Loan Society v. Kaufman

[70]

McFARLAND, J.

This is an appeal by plaintiff from an order denying its motion for a new trial-—judgment having been rendered in the court below in favor of defendants, i .We do not deem it necessary to refer here to all of the previous "facts, running through many years, out of which this case arose. Many of them are noticed in

Knowlton

v.

Mackenzie,

110 Cal. 183, and

Herrlich

v.

Kaufmann,

99 Cal. 271.

1

It is sufficient for the purposes of this decision to state these facts: The defendant W. W. Kaufman is. the administrator of C. H. Kaufman, deceased. In December, 1886, one Mackenzie, a stockbroker, failed, and made an assignment for the benefit of his creditors to said C. H. Kaufman, then living. Mackenzie turned over to his assignee, among other assets, certain stocks of mining and other corporations. One M. H. McDonald claimed that some of these stocks belonged to her, and not to Mackenzie. This McDonald claim was assigned by her to one Scott, and was afterwards assigned to George O. Davis, who, before the commencement of this action, assigned the same to the plaintiff herein, the Hibernia Savings and Loan Society. On December 9, 1886,—shortly after the assignment from Mackenzie to Kaufman,—one Knowlton commenced an action against Mackenzie and Kaufman, as assignee, in which he asked that certain shares of stock delivered by Mackenzie to Kaufman be adjudicated to be the property of said Knowlton, and prayed for general relief. Afterwards all the creditors of Mackenzie, including said Davis, who was then the owner of the McDonald claim, became parties to that suit, and they entered into a written agreement that Kaufman should sell the stocks and cash the securities delivered to him by Mackenzie, and distribute the proceeds to the parties in proportion to their respective claims. There was a judgment in that case that said Davis have and recover from Kaufman $3,822.52. Afterwards the court undertook to modify this judgment by increasing it to $5,769.52, but, on appeal to this court, it was held here that the modifications sought to be made after judgment was erroneous, and the court below was directed to enter judgment for the original amount of $3,822.52 against Kaufman “as assignee” of Mackenzie.