Sisk v. California Natiional Bank

SHENK, J. Appeal from a judgment for the defendant Barnes. The action was brought to recover the sum of $7,906.02 on deposit with the defendant bank, and levied upon under execution to satisfy partially a judgment of the plaintiff Spencer against the defendant Barnes.

Prior to 1909 Spencer and Barnes were copartners in the sale of certain mining properties. Barnes sold the properties and collected the proceeds. Spencer engaged Messrs. Andrew M. Strong and Lewis B. Works as his attorneys to prosecute his claim against Barnes for an accounting and a share of the proceeds of the sale, under a written agreement to pay his attorneys forty per cent of any recovery. In an action commenced in 1909 in the Superior Court in Los Angeles County, in which an amended complaint was filed by said attorneys in 1912, the plaintiff recovered a judgment for $69,325 against Barnes. Suit on the judgment was brought in the state of Oregon under an agreement with Oregon attorneys, Messrs. Oscar Hayter, W. T. Slater, and P. M. Etheridge, to pay them fifty-five per cent of any amounts recovered in Oregon. There is evidence indicating that there was also an oral agreement by Spencer to pay the California attorneys an additional fifteen per cent of the amounts recovered on the California judgment. The California and Oregon attorneys agreed among themselves respecting a division of their percentages of any proceeds from both judgments. At various times moneys aggregating some $9,000 were collected pursuant to levies of execution and divided forty-five per cent to Spencer and fifty-five per cent to the attorneys. ‘

In December, 1926, in California, an execution was issued and levied upon a credit of $7,906.02 in the name of Legene S. Barnes with the defendant California National Bank of Long Beach. The defendant Elbe Oil Land Development Company claimed the fund. In April, 1928, the present action was commenced by Spencer, represented by Newlin & Ashburn and Arthur T. George, as his attorneys, against Barnes, the bank, and the development company, to determine the ownership of the fund. While the action was pending and on June 19, 1930, Spencer settled the claim against Barnes for the sum of $20,000. In the settlement Spencer was represented by F. D. B. Moote, and Barnes by [683]G. M. Spicer. Spencer executed and delivered to Grace D. Barnes, wife of the defendant Barnes, an assignment of the California judgment. Mrs. Barnes executed a satisfaction of said judgment which was filed and entered the next day.

Subsequently on motion the five California and Oregon attorneys, or their representatives, who claimed an interest in said judgment and in the fund held under the garnishment, were substituted as parties plaintiff in the action and filed a supplemental complaint. On the trial the Elbe Oil Land Development Company disclaimed any interest in the fund. The issues framed by the supplemental complaint and answer thereto left for determination the main question in this case, viz., whether there existed an assignment by Spencer to the substituted plaintiffs of fifty-five per cent of the California judgment and whether the defendant Barnes and his wife had such notice or knowledge of any assignment as to prevent the effect of the satisfaction of the judgment in so far as the interest of the substituted plaintiffs was concerned.