Fox v. Shorter

VALLÉE, J. Appeal by A. Fox from an order vacating: a default in an action for attorney’s fees; the default judgment; and an execution sale.

It appears from the record that appellant A. Fox has no interest in the subject matter of the action and consequently that the appeal must be dismissed. Thomas D. Mercola, an attorney at law, asserting he had a claim against defendant for attorney’s fees in the amount of $5,250, on July 8, 1954 assigned the claim to A. Fox. A. Fox then brought this action and had a writ of attachment issued and levied on realty. Summons was published and defendant’s default entered on January 11, 1955.

On January 20, 1955, Fox assigned all of his right, title, and interest in the claim back to Thomas D. Mercola. On February 7, 1955, judgment by default was entered against defendant in the sum of $5,250 plus interest and costs. The assignment of January 20 was before the court and the judgment decrees: “It is adjudged that plaintiff’s assignor,

Thomas D. Mercola recover of and from said defendant the sum of . . . $5,250.00. ...” Thereafter the realty under attachment was sold on execution to Mercola for $2,500.

On February 28, 1956, the court on motion of Olivia Shorter, wife of defendant, as trustee of the estate of defendant, a missing person, vacated the default, the default judgment, and the execution sale.

A. Fox filed a notice of appeal from the order stating “The Plaintiff, A. Fox, hereby appeals to the District Court of Appeal, State of California, from that certain Order vacating default, default judgment and execution sale, made, rendered and entered by the above entitled Court under date of February 28, 1956.” Mercola did not appeal. No motion or order for substitution of parties was made.

Where a party transfers his interest in an action after the action has been commenced and before judgment the transferee is the proper party to appeal and not the transferor, since the latter has no further interest in the action. (Miller v. Bank of America, 52 Cal.App.2d 512 [126 P.2d 444] ; 3 Cal.Jur.2d, 563, § 109.)

In Miller v. Bank of America, supra, one of two plaintiffs in an action for conversion died after the trial and submission of the cause but before judgment was rendered or entered. The interest of the decedent, Miller, was purchased by his coplaintiff, Powell. Later judgment was rendered against the plaintiffs. Powell filed notice of appeal in behalf of both [157]