Kewen v. Johnson

Appeal from the District Court of the First Judicial District, County of Los Angeles.

This was a motion made to the Court below, for an order to compel the defendant, as Clerk of the District Court, to pay over certain moneys in his hands to the plaintiff.

The motion was based on the following facts :

Goodwin & Co. commenced suit in the District Court of Los Angeles County, by attachment, against Lewis Glazer, to recover a sum of money. The attachment was levied by the Sheriff of Los Angeles County, on a stock of goods or merchandise, and also on two several promissory notes of five hundred dollars each. The goods being perishable property, were sold under the order of Court, and the proceeds of such sale, $1,222.55, were paid into Court, subject to the suit. On the twenty-first day of July, 1857, a second attachment was issued in said suit, and directed to the Sheriff of San Bernardino County, who levied the same on a stock of goods in that county. On the third of August, 1857, one Charles Glazer brought an action of replevin against the Sheriff of San Bernardino County,- to recover said last mentioned stock of goods. A receiver was appointed in this suit, to take charge and sell the goods. The receiver sold the goods, and on the fifteenth of March, 1858, paid into Court the sum of $5,343.22, the proceeds of such sale. The defendant in the replevin suit subsequently obtained judgment, from which the plaintiff appealed to the Supreme Court, where the same was still pending at the time of the plaintiff’s motion. No bond staying execution was given. On the eighth of April, 1858, Goodwin & Co. recovered judgment against Lewis Glazer, for the sum of $5,343.22 debt, and $358.31 cost; from which judgment Glazer appealed to the Supreme Court, and gave bond in the sum of three hundred dollars for the payment of cost, and recited in said bond that Charles Glazer had deposited in Court, on the part of appellant, the sum of $5,343.22, (this appears to be the same money paid into Court by the receiver) in the case of Charles Glazer v. The Sheriff of San Bernardino County.

The two promissory notes were sold by order of Court, and brought the sum of five hundred and forty-three dollars. On the seventh of May, 1858, the judge of said District Court made a chamber order, requiring the clerk to issue execution in the case of Goodwin & Co. v. Lewis Glazer, and to apply the deposit of $5,343.22 thereon: from which order Lewis Glazer appealed.

On the fifth day of March, 1858, Lewis Glazer, for value received, assigned to Kewen, the plaintiff, the sum of $1,222.55, with power to demand, receive and acquit for the same. Kewen made demand of defendant, Johnson, for this sum, which was refused, on the ground that said amount was in his custody as Clerk of the Court, and was subject to the attachment lien of Goodwin & Co. Kewen thereupon, made his motion, which was based on notice and affidavit, to the District Court of Los Angeles County, for an order requiring the defendant, as such clerk, to pay over to him the amount, which was denied, and he appealed therefrom to this Court.