Fidelity & Casualty Co. of New York v. Superior Court

SCHMIDT, J., pro tem. This matter comes before the court on a petition for writ of review upon the following facts: That on the twenty-second day of November, 1929, the Superior Court in and for the City and County of San Francisco, in its action No. 201509 Civil, rendered and entered its judgment in favor of Philip G. Herrlein, plaintiff, as follows:

‘ ‘ 1. That defendant Fred A. Tocchini is indebted to plaintiff Philip G. Herrlein in the sum of $45,657.50 . . .

“2. That defendant Lilienthal, Bremer & Co. be and it is hereby ordered to pay over to plaintiff Philip G. Herrlein the sum of $12,000.00 now on deposit with said defendant Lilienthal, Bremer & Co., which sum of $12,000.00 was deposited with said defendant by or on behalf of defendant Fred A. Tocchini, said $12,000.00 to be applied on account of the judgment in paragraph 1 hereof specified.

“3. That ■ defendant Lilienthal, Bremer & Co. be and it is hereby ordered to pay over to plaintiff Philip G. Herrlein all cash dividends received by it or received by either of the' plaintiffs and paid to the said defendants, which said cash dividends amount to the sum of $1,139.08, and which said sum is to be applied on account of payment of the judgment in paragraph 1 hereof specified.

“4. That defendant Lilienthal, Bremer & Co. be and it is hereby ordered to sell all of the shares of stock herein-before on page 2 hereof set forth (saving and excepting . . . ), or so much thereof as may be necessary to pay the balance of the judgment herein rendered in favor of plaintiff Philip G. Herrlein after applying thereto the sum of $12,000.00 and the cash dividends hereinabove referred to and to pay the net proceeds of such sale, or sales, to said plaintiff Philip G. Herrlein. . .' .

“6. It is further ordered, adjudged and decreed that in the event the said sum of $12,000.00 ordered to be paid plaintiff Philip G. Herrlein by defendant Lilienthal, Bremer & Co., together with the cash dividends now in the possession of Lilienthal, Bremer & Co., in the sum of $1,139.08, together with the net proceeds of the stock ordered to be sold by defendant Lilienthal, Bremer & Co., shall not be sufficient to pay the plaintiff Philip G. Herrlein the said sum of $45,-657.50, with interest from July 16, .1928, at seven per cent [617]per annum, together with plaintiff’s cost of suit, that in that event plaintiff Philip G-. Herrlein have judgment against defendant Fred A. Tocchini for any deficiency remaining due to plaintiff Philip Gr. Herrlein after such sale and application as hereinabove provided, and defendant Lilienthal, Bremer & Co. is hereby ordered and directed after making such sale, or sales, of stock to make and file a return herein specifying the results thereof.