Dunsmoor v. Furstenfeldt

Vanclief, C. The plaintiff (clerk of the superior court) brought this action to compel the defendants, Furstenfeldt and Geinger, to interplead as to their respective adverse claims to be paid a sum of money in the possession and custody of the plaintiff, which he was willing and ready to pay to the one to whom the court should determine it was due.

The court adjudged that Furstenfeldt was entitled to the money, and Geinger brings this appeal from the judgment upon the judgment roll, and contends that upon the facts found the judgment should have been in his favor.

The material facts found are substantially as follows: 1. In January, 1888, Peter Eschelbach made an assignment of his property to one Lewis, for the benefit of his creditors; 2. Thereafter, Sichler, one of the creditors of the insolvent, brought an action in the superior court of Los Angeles County against Lewis, the assignee, to compel him to account to the creditors; 3. In this action against the assignee he was ordered by the court, April 11,1889, to deposit with the clerk thereof, Dunsmoor, plaintiff herein, about $8,000, to be held pending the litigation as to the proper distribution thereof among the creditors, and thereupon the said sum was so deposited by the assignee; 4. On the same day, April 11, 1889, the court ordered a distribution of said sum among the creditors, one of whom was Antone Miller, to whom the court ordered the clerk, plaintiff herein, to pay from said money the sum of $305.32; 5. On July 3, 1889, Miller assigned all his right and title to the last-mentioned sum, then in the custody of the clerk, to the defendant Furstenfeldt, who, on the following ninth day of July, demanded it of [525]the clerk, but the clerk then refused and ever since has refused to pay the same to Furstenfeldt; 6. On the sixth day of April, 1889, the defendant Geinger obtained a judgment in the superior court of San Francisco against Antone Miller for the sum of $1,319, upon which execution was issued to the sheriff of Los Angeles County on June 18, 1889, and was duly served by copy and garnishment upon Dunsmoor, the plaintiff, and upon Lewis, the assignee of the insolvent, on June 20,1889; 7. Duns-moor, on June 21, 1889, answered to the garnishment notice that he held, subject to the order of the court, $305.32, which had been distributed, by order of the court in the case of Sichler v. Lewis, to Antone Miller, as above stated; 8. On July 1, 1889, defendant Geinger demanded of Dunsmoor said sum of $305.32, which the latter refused to pay, and which he still holds in his custody, subject to the judgment of the court in this action, as alleged in his complaint herein; 9. Thereafter the defendant Furstenfeldt petitioned the superior court of Los Angeles County for an order requiring Dunsmoor to pay to him said sum of $305.32, on the ground that it had been assigned to him by Antone Miller, to whom it had been ordered to be paid in the case of Sichler v. Lewis, Assignee, but the court, after “ due hearing,” denied his petition, “ upon the ground that said court had no further control or jurisdiction over said sum of money, by reason of the order of distribution previously made by said court.” Whether Geinger had notice of this petition is not stated, nor does it appear that he participated in the hearing.