Camp v. Oakland Mortgage & Finance Co.

THE COURT.

Motion to dismiss. Plaintiff brought this action to recover from the Oakland Mortgage & Finance Company the residue or balance of a loan fund remaining in its hands, the loan having been theretofore arranged for and negotiated by one George Phillips and wife to meet progress payments on certain improvement work undertaken by them. Plaintiff’s claim to this balance is founded upon what is described in the complaint as a “draft” drawn by Phillips and wife to the plaintiff’s order, and accepted for payment by the drawee when the fourth payment on the loan should fall due and subsequent to the filing of the notice of completion of building. Several other persons having made demand for the balance remaining in its hands under the loan arrangement, and being unable to determine to whom it should pay the same, the Oakland Mortgage &

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Finance Company, in accordance with the requirements of section 386 of the Code of Civil Procedure, moved the court below, before answer filed, for an order discharging it from liability and dismissing it from the action, upon payment into court of the sum in dispute, and substituting in its place' and stead all of the adverse claimants. From the order granting this motion the plaintiff purported to take an appeal to this court, which appeal was subsequently dismissed (205 Cal. 380 [270 Pac. 685]) on the ground that such an order was reviewable only on appeal from the judgment. Thereafter, and by and with the consent of the Phillips, the defendant Fidelity and Casualty Company of New York, one of the substituted defendants, did pay and discharge the liens and claims of the several other substituted defendants, thus leaving itself as the only defendant in the case with whom plaintiff was to litigate his asserted right to the money deposited in court, as hereinbefore stated. Upon the conclusion of the trial, it was found that the claim and right of the substituted defendant in and to the fund so deposited in court was superior to and entitled to priority over plaintiff’s claim. Judgment was entered accordingly, and plaintiff appealed.

Respondent Fidelity and Casualty Company of New York moves to dismiss the appeal from the judgment on the ground that appellant has failed to serve a copy of the transcript or of his opening brief on the Oakland Mortgage & Finance Company, the original defendant who had been substituted out of the case. Movant has referred us to no authority, and our research has uncovered none, justifying a dismissal under the circumstances of this case. From the time of the deposit of the money in court and the discharge and dismissal of the Oakland Mortgage & Finance Company from the case, the proceeding was one solely between the plaintiff and the substituted defendant