Turner v. Donovan

BISHOP, J. pro tem. The defendant in this ease appears as both a judgment debtor and a judgment creditor. He obtained a judgment for $3,544 against one H. W. Bateman, a resident of Montana, in the United States District Court for the District of Montana. A judgment was entered against the defendant, in the Los Angeles County action before us, in 1939. Making use of a writ of execution issued upon the Los Angeles County judgment, the sheriff of Siskiyou County served a garnishment upon Bateman, who accommodatingly appeared in this state for the purpose, and thereafter sold the $3,544 judgment to the plaintiffs for $250. The defendant moved to have the sale set aside, and from the order denying his motion took an appeal. We have determined that the order denying his motion should be reversed.

A somewhat fuller statement of facts is essential to an understanding of the appeal’s problems. The writ of execution was issued under date of August 14, 1941, and the plaintiffs forwarded it to the Siskiyou County sheriff with instructions to serve it upon Bateman- who, the sheriff was informed, would be at the latter’s office “sometime on Monday, August 25th, to accept service on this writ and presumably make a return.” Plaintiffs’ prediction that Bateman would appear at the sheriff’s office in Treka, California, was based upon an understanding reached with Bateman’s attorneys that that judgment debtor would come within arm’s reach of California process so that the claim of defendant Donovan against him, evidenced by the Montana judgment, might be sold to Donovan’s judgment creditors, the plaintiffs, it being agreed that should they acquire the judgment, and should it be affirmed upon the appeal which was then pending, upon the payment to Donovan’s creditors of $1,500, the $3,544 judgment would be satisfied so far as they were concerned. Some outstanding claims against the judgment, amounting to $1,000 or more, were to be taken care of by Bateman.

Judgment debtor Bateman appeared as agreed and was [377]served by the Siskiyou sheriff with this notice: “To Dr. H. W. Bateman and to Whom It Mat Concern You will please take notice, that all moneys, goods, credits, effects, debts due or owing, James Donovan and all other personal property, in your possession, or under your control belonging to the defendant named on the writ, of which the annexed is a copy, or to either or any of them, are levied upon by virtue of said writ; and you are hereby notified not to pay over or transfer the same to to anyone but myself. Please furnish a statement. Ben J. Richardson, Sheriff by A. B. Weed, Undersheriff Dated August 25, 1941.” In response to the sheriff’s courteous request for a statement, Bateman replied that he owed no money to Donovan, nor did he owe him any liability, contingent or otherwise, saving and except the judgment for $3,544. Then, following the instructions of the plaintiff, the sheriff proceeded to “sell” Donovan’s debt-judgment against Bateman, the plaintiffs being the purchasers through a local agent. What magic words were used when the sale was made we do not know; the article offered for sale may have been called “debt,” “claim,” “judgment,” or something else. No money was paid to the sheriff in support of the bid of $250 which he accepted, nor did the plaintiff’s agent receive the $244.25 net returns from the sale for which he receipted. Just what notices of the sale were posted or published, the record does not disclose, but defendant Donovan had no actual notice of the sale, and knew nothing of it or of the garnishment until December 15, 1941. In their first letter of instructions to the sheriff the plaintiffs voiced a request that he mail a notice of the sale to defendant Donovan, but this was not done.