Bixby v. Hotchkis

SHINN, J. The present action was one for the conversion of 10,703% shares of the capital stock of Fred H. Bixby Company. The action, numbered 463102 in the superior court, was instituted April 11, 1941, and at that time there were on trial two other actions brought by plaintiff, numbered 458012 and 458013, the history of which, so far as pertinent here, is stated in our decision of appeals numbered 14859 and 14860, this day filed (post, p. 375 [164 P.2d 804]), and in the opinion in Bixby v. Hotchkis, reported in 58 Cal.App.2d 445 [136 P.2d 597]. ' One of those actions was for the recovery from Katharine Bixby Hotchkis of the shares of stock in the Bixby Company which, by the complaint in the instant action, were alleged to have been converted by said defendant. The other action was for the recovery of dividends on the stock which had come into the hands of Mrs. Hotchkis as trustee. After the institution of the present action Mrs. Hotchkis filed an amendment and supplement to cross-complaint in the two actions which were then on trial, in which the institution of the present action was alleged, together with the fact that said action raised the same issues as the cross-complaints of Mrs. Hotchkis and the answers of Fred H. Bixby, Jr. thereto which were then on trial. As appears from the opinion upon the other appeal, this day filed, the judgments in superior court actions 458012 and 458013 established the validity of the trust, under which Mrs. Hotchkis held title to the stock as trustee. The question was properly before the court in the actions that were tried, as to whether Fred H. Bixby, Jr. had any interest in the stock other than as the beneficiary of the trust, and the judgments determined that he had no other interest. That determination, that Mrs. Hotchkis held title as trustee, necessarily defeated plaintiff’s claims that he was entitled to the possession of the stock and the dividends thereon and the claim asserted in the instant action that the stock had been converted by Mrs. Hotchkis. The court found: “It is not true that cross-complainant has converted to her own use or at all the whole or any of said 10,703% shares of stock or the certificates representing same.” It was further found that Mrs. Hotchkis had not taken or withheld or detained all or any of said shares of capital stock at any time or in any manner except as trustee of said trust. Those judgments were affirmed (Bixby v. Hotchkis (1943), 58 Cal.App.2d 445 [136 P.2d 597]) and became final. They were therefore a conclusive [371]adjudication adverse to plaintiff herein of his asserted claim that the stock had been converted by Mrs. Hotchkis. After the judgments had become final, the plea of res judicata was interposed by amendment and supplement to answer of Mrs. Hotchkis and of defendants Fred H. Bixby Company and Sherman Anderson in the present action. The latter two parties were defendants in action 458012, Mrs. Hotchkis a defendant in both former actions. The case was tried upon the issue of res judicata pursuant to section 597 of the Code of Civil Procedure. The special defense was sustained by findings and judgment, and plaintiff has appealed from the judgment.