Palmquist v. Palmquist

AGEE, J. On July 25, 1961, in this Alameda County separate maintenance action, plaintiff recovered a money judgment against defendant. In order to stay execution of the judgment pending defendant’s appeal, the parties agreed that Bank of America would hold certain funds of the defendant as security for the payment of the judgment when and if affirmed on appeal. Defendant thereby lost control over said funds or the right to the possession thereof to the extent that said funds might become necessary to satisfy the judgment. The only interest which defendant retained there[790]in was contingent upon his obtaining a reversal of the judgment. In any event, the judgment was affirmed by this court on January 25, 1963 (212 Cal.App.2d 322 [27 Cal.Rptr. 744]) and the Supreme Court unanimously denied a hearing on March 20, 1963. The remittitur was issued on March 27, 1963.

On March 29, 1963, at 10:40 a.m., the Sheriff of Alameda County levied a writ for the execution of the judgment upon the bank. Later on the same day defendant filed a motion to recall the execution. On April 9, 1963, the lower court denied the motion. The bank then delivered to the sheriff the amount necessary to satisfy the judgment plus the sheriff’s fees. The regularity of this payment by the bank to the sheriff is no longer in dispute and is not an issue on this appeal.

On March 26, 1963, defendant, as guardian ad litem of his four minor children (by prior marriages), caused them to file an action in Santa Barbara County against plaintiff and her attorneys. The complaint therein alleges that plaintiff had breached an oral agreement with defendant that she would cooperate with him in preserving his assets for the use and benefit of these children and that her attorneys had assisted her in breaching such agreement, all to the damage of the children, as third party beneficiaries, in the total sum of $124,000.

On the ground that plaintiff had become a nonresident of California, defendant, as said guardian ad litem, caused a writ of attachment to be issued in the Santa Barbara County action as allowed by section 537, subdivisions 2 and 3, of the Code of Civil Procedure. He then caused this writ of attachment to be served upon himself on March 29, 1963, at 10:20 a.m., 20 minutes before the Alameda County writ of execution was served upon Bank of America. The writ of attachment was never served upon either the bank or the sheriff.

On April 12, 1963, before the sheriff could turn over the money to plaintiff, an agent acting for the children executed a third party claim to the funds and delivered such claim to the sheriff. (Code Civ. Proc., § 689.)