Gamble v. Biscailuz

DORAN, J. This is an action against Eugene W. Biscailuz, as sheriff of Los Angeles County, to recover the sum of $2,900 collected by him on execution from Frank J. McCoy, the defendant in a superior court action entitled “Herbert N. Ellinwood v. Frank J. McCoy” and claimed by the plaintiff herein, W. 0. Gamble, by virtue of an alleged garnishment served upon McCoy. Judgment was rendered in favor of the defendant, Eugene W. Biscailuz, and the plaintiff, W. 0. Gamble, has appealed.

It appears that on February 23, 1933, said Herbert N. Ellinwood recovered a judgment in the Superior Court of Los Angeles County against Frank J. McCoy. On the following day, to wit, February 24, 1933, Ellinwood assigned said judgment by an instrument in writing to David II. Clark, one of his attorneys, who in turn, on March 30, 1935, assigned the same judgment to one G. V. Irvine, a secretary in the law offices shared by Clark and two other of Ellinwood’s attorneys. The assignment to Clark was recorded on February 25, 1933, in the office of the county recorder of Los Angeles County, and, on August 6, 1935, was entered in the office of the county clerk, in the file of said action.

Thereafter, to wit, on October 14, 1935, in an action entitled “W. 0. Gamble v. Herbert N. Ellinwood,” then pending in said superior court, plaintiff Gamble caused a writ of attachment to be issued, and instructed the sheriff of Los Angeles County to garnishee “that certain debt as evidenced by the judgment in favor of the defendant, Herbert Ellinwood and against Frank McCoy”. The writ was served upon [238]MeCoy on that day. McCoy paid to the sheriff the whole amount of the judgment against him, in two checks, one for $3,292.17, the amount necessary to satisfy the garnishment, and the other for the balance due under said judgment. The sheriff, taking the position that by reason of the assignments Ellinwood had divested himself of any interest in the MeCoy judgment, paid the whole amount of the money collected, to Clark’s assignee. Some eight months later, Gamble, recovering judgment in the sum of $2,900 against Ellinwood, caused an execution to be issued, and sought to have defendant sheriff satisfy the judgment out of the moneys collected from McCoy, which money had already been turned over to Clark’s assignee.

The present action was commenced against the sheriff for the amount of Gamble’s judgment, based on the theory that the sheriff was in possession of the money by virtue of the above-mentioned payment made by McCoy.