Domec v. Stearns

By the Court, Sanderson, J.: This is an action brought by Domec, a judgment creditor of the defendant Stearns, to restrain John Parrott, also a judgment creditor of Stearns, John G-. Downey, the attorney in fact of Parrott, and Thomas A. Sanchez, Sheriff of Los Angeles County, from selling, under an execution in favor of Parrott, a large amount of personal property in Los Angeles County belonging to Stearns, also to obtain the appointment of a receiver to take charge of all the real and personal estate of Stearns and to sell at private sale the personal property and pay the proceeds into Court for the benefit of the plaintiff and other judgment creditors of Stearns named in the bill, and that such proceeds, together with the rents and issues of the real estate, be applied upon the several judgments against Stearns in the order of their priority, and that Parrott and Sanchez render an account of certain moneys alleged to have been received by them. The facts upon which this relief is sought, so far as we deem it important to state them, are substantially as follows :

On the 15th of August, 1864, the defendant, Sanchez, levied an attachment upon the personal property in question at the suit of Parrott for about thirty-seven thousand dollars. On the next day Sanchez levied an attachment on the same property in favor of the plaintiff for the sum of six thousand two [118]hundred and eighty-six dollars and eighty-six cents. Subsequently other attachments were levied upon the same property by Sanchez; one in favor of George E. Howard, for twelve thousand and twenty-five dollars, and one in favor of Phelps, Dodge & Co., for fifteen thousand and twenty-one dollars and thirty-seven cents. In all of these cases judgments were subsequently obtained against Stearns. Parrott and Howard sued in the Fourth District, Phelps, Dodge & Co. in the Twelfth District, and plaintiff in the First District, in which district the plaintiff also brought the present action.

On the 11th of October, 1864, Stearns executed a mortgage to Parrott of the attached property, to which the other judgment creditors assented. There is some controversy as to whether this mortgage contract was ever consummated, but for the purposes of this opinion we shall assume that it was. This mortgage was given to secure the payment of Parrott’s judgment and in default of payment on or before the 11th of April, 1865, it was therein provided that Parrott should have the power to sell in the manner provided in a power of attorney annexed to and constituting a part of the instrument, and account for any overplus to Stearns.