Evans v. Superior Court

SHENK, J. The petitioner, as Building and Loan Commissioner, applied for the writ of mandamus to direct the respondent superior court to recall and quash a writ of execution levied on the assets of Pacific States Savings and Loan Society to satisfy a judgment rendered for the plaintiffs, Terry et. al., in an action against the society. The facts are not disputed.

On September 30, 1937, Terry and others commenced an action against Pacific States Savings and Loan Society to recover sums claimed to be due on certain fidelity definite term investment certificates and fidelity participating certificates of the society which matured May 23, 1936.

March 4, 1939, the petitioner took possession of the property and assets of the society pursuant to section 13.11 of the Building and Loan Association Act. (Stats. 1931, page 483, as amended, Deering’s Gen. Laws, Act 986.) The next day pursuant to section 13.12 of the act the society commenced an action to enjoin further proceedings on the part of the commissioner.

June 12, 1939, the plaintiffs in the Terry action recovered judgment for $15,696.71 and on August 23, 1939, execution was levied, but nothing has been paid on the judgment by virtue of the levy.

October 30, 1939, pursuant to section 13.16 of the act, the commissioner filed a notice of determination to liquidate. August 2, 1941, the commissioner in the Terry action moved the respondent court to recall and quash the writ of execution on the ground that said section 13.16 forbade the lien of said judgment and any execution thereon. The motion was denied, and on September 4, 1941, the present proceeding was commenced for the purpose of compelling the respondent court to recall and quash the writ of execution. On December 29, 1941, the court in the injunction proceeding filed by the society on March 5, 1939, found for the commissioner and entered its judgment of dismissal.

The foregoing statement of facts is sufficient upon which to resolve the problem here involved. Section 13.16 of the act provides in part: “The determination by the commissioner to liquidate any association, .evidenced by filing writ[188]ten notice of such determination with the court shall operate to stay or dissolve any or all actions or attachments instituted or levied within thirty days next preceding the taking of possession of such association by the commissioner, and pending the process of liquidation as herein provided no attachment or execution shall be levied or lien created upon any of the property of such association. ’ ’ The respondent court had the power and it was its duty to recall the writ of execution if it was improvidently issued. (Creditors Adjustment Co. v. Newman, 185 Cal. 509, 511 [197 Pac. 334].)