Margolis v. Superior Court

WOOD (Fred B.), J. Petitioners Harry and Ann Margolis seek a writ of mandate to require the superior court to proceed with the trial of an action wherein they are plaintiffs and United States Hoffman Machinery Corporation is defendant, an action for the conversion of certain dry cleaning equipment. The superior court has continued the trial of that action until the judgment becomes final in a claims and delivery action involving the very same equipment, an action wherein A. M. Grupp and Melvin A. Schiller, copartners, are plaintiffs and Margolis and wife are defendants, the Hoffman Corporation not being a party thereto. The judgment awarded this equipment to Grupp and Schiller but is not final because Margolis’ appeal therefrom is still pending.

The main question is whether or not this judgment if and when it becomes final without modification will be determinative of one or more of the issues in the action not yet tried. (See Houghton v. Superior Court, 187 Cal. 661 [203 P. 765].)

The disparity of parties adversary to Margolis (Grupp and Schiller in one action; The Hoffman Corporation in the other) does not necessarily compel a negative answer. (See Bernhard v. Bank of America, 19 Cal.2d 807 [122 P.2d 892]; 2 Witkin, California Procedure 1751, Trial, §24; 3 Witkin, California Procedure 1926-1929 and 1956-1962, Judgment, §§ 44-45 and 68-70.)

In the instant case, may it be said that one or more issues are common to both actions and that there is such a privity of interest between Grupp and Schiller and the Hoffman Corporation as would entitle the latter to invoke the Grupp and Schiller judgment as determinative of such issue or issues if and when the judgment becomes final?

Let us consider first, in their sequence, certain significant events that are not in dispute. In March, 1953, the Karps, owners of certain improved real estate, borrowed $6,000 of Margolis, giving as security a deed to the realty and a bill of sale for certain personalty (not including the equipment here involved). Later, Margolis reconveyed and the Karps gave Margolis a deed of trust and chattel mortgage to secure the loan.

In April, 1953, the equipment in question, which the Karps purchased from Hoffman, was installed in a building situate on the real property mentioned.

In February, 1954, Hoffman removed the equipment, Karps assertedly having failed to complete the purchase price.

In March, 1954, Eli Rosen bought the equipment from Hoff