National Automobile Insurance v. Fraties

WARD, J. This appeal involves the denial of the right of a third party claimant to present any evidence in support of his claim.

The respondent brought action against defendant George J. Fraties and attached eight trucks in his possession. His brother, E. S. Freitas, who spelled his name differently, filed [432]a third party claim with the sheriff alleging that he had purchased the trucks from defendant. In a hearing to determine title under sec. 689, Code Civ. Proc., the court found that the transfer was fraudulent and void as to the creditors of defendant.

Except to say that a remark, hereinafter referred to, made by the trial court with reference to the testimony of the defendant may have been well founded, and that such testimony when considered with certain statements in a deposition of the third party claimant may factually have warranted the judgment as rendered, we are convinced that appellant, the third party claimant, was denied his constitutional right to a hearing upon the issues raised.

Section 689, Code Civ. Proc., provides a system for formulating issues when personal property is levied upon. It is a summary proceeding. There is no provision for the granting of a new trial or a rehearing, but an appeal lies from any judgment determining title under the section. The court in its sound discretion may designate the order of proof, but upon the third party claimant rests the burden of proof, and he is therefore entitled to present evidence in support of his claim. The record before us does not show that any evidence on his behalf was introduced owing to the trial court’s action in pronouncing judgment before the plaintiff, respondent herein, had finished introducing evidence to combat the allegations in the third party claim on file.

The record discloses that the hearing started at 12:30 p. m. and was heard to its conclusion without a recess; that the attaching plaintiff opened the ease without any discussion as to who should first proceed. Plaintiff offered proof to show that it was a creditor, and then, without reading the contents thereof to the court, offered in evidence as an exhibit a deposition of a third party claimant taken pursuant to the provisions of section 2055, Code Civ. Proc. The deposition covers some forty pages of typewritten matter. Plaintiff presented a motion to strike out several parts of the deposition. This motion was taken under submission and not ruled upon. Counsel for plaintiff stated: “Now, your Honor, the deposition of the third party claimant, Emanuel S. Freitas, was taken on August 6, 1940. It is rather a full and comprehensive deposition. I could read it to your Honor but to save time I would suggest that it just be filed