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of the electors might prevent an ordinance and at and about his last place of residence, from becoming operative for a long period of that members of his family had informed pertime after the expiration of the time pro- was not at home, that he was not in the state,

sons attempting to make service that defendant vided by the charter when the same should and that they would not disclose where he was, become operative. The same reasons do not they sufficiently showed that defendant after apply to the initiative; that provides for the due diligence could not be found within the inauguration of new and independent legisla- state, and authorized an order for service by

publication, tion. No rights are affected, and no steps

[Ed. Note.-For other cases, see Process, Cent. required to be taken, until a petition of the Dig. 88 108-120; Dec. Dig. $ 96.*] requisite kind and character is on file. In- 2. JUDGMENT ($ 17*)—PERSONAL JUDGMENTterested parties might indulge in petitions NONRESIDENT. without number, amend without limitation, Courts have no jurisdiction to render a commence and recommence proceedings un- ice by publication, unless property within the

money judgment against a nonresident on sery. der section 198a, without disturbing public jurisdiction is held under a valid attachment affairs in the least. But such would not be at the time of the rendition of the judgment, the effect, were the clause with reference to in which case the judgment is considered valid amendment to be construed as applying to as a judgment in rem in so far as it may be

satisfied out of the property so held. the referendum.

[Ed. Note.-For other cases, see Judgment, It is certainly beyond question that the Cent. Dig. $S 25-33; Dec, Dig. & 17.*] original petition filed in this instance was 3. ATTACHMENT (8 117*)—AFFIDAVIT-REQUI. not in the manner and form prescribed by SITES. the charter. Each separate paper was not

Where an attachment affidavit recited that verified by one of the signers thereof, which the “judgment” was not sought to hinder, de

lay, or defraud any creditor of the defendant, being true it was of no effect as a protest un-buť did not state that the "attachment" was der this section of the charter. The demand not sought for that purpose, as required by Code to amend is a tacit admission of the insuffi- Civ. Proc. § 538, it was insufficient to sustain

the writ. ciency of the original; otherwise no reason

[Ed. Note. For other cases, see Attachment, suggests itself why a sufficient paper should Cent. Dig. & 241; Dec. Dig. $ 117.*] be amended, or that a court should by its or- 4. ATTACHMENT (141*)—ISSUANCE-DUTY OF der compel consent thereto. There being, CLERK. then, on file no protest or petition as by the While the clerk in issuing an attachment charter provided, at the expiration of 30 performs but a ministerial duty, he has no audays from the approval of the ordinance, the fails to state the facts required by statute on

thority to issue the writ where the affidavit ordinance became effective and operative, and which the writ exclusively depends. no amendment and no steps of any kind or [Ed. Note.--For other cases, see Attachment, character thereafter taken by the electors, Dec. Dig. $ 141.*] under section 1986, could disturb the opera

Appeal from Superior Court, Los Angeles tive character of this ordinance so in effect.

County; W. R. Hervey, Judge. We think the court below properly determined that the original petition was insufficient, against A. P. Buisseret and another. From

Action by the Merchants' National Union and that the clerk was warranted in so cer- orders denying motions made by defendant tifying. Being so insufficient, the ordinance Buisseret to vacate a default judgment and taking effect 30 days after its approval, the to dissolve an attachment, he appeals. Reclerk had no duty to perform in connection with so-called amendments of original peti

versed. tions thereafter filed with reference to such

Walter J. Horgan, for appellant. D. Jos ordinance, and, that the ordinance 'having eph Coyne, for respondent. taken effect within the time provided by the charter, no authority or jurisdiction reposed JAMES, J. Defendant Buisseret appeals in the city council to order an election under from orders of the superior court denying section 198b, through which the electors motions made by him to vacate a default might annul the operative ordinance.

judgment, and to dissolve an attachment. Judgment affirmed.

The action was brought to recover the sum

of $5,241.04 from defendants for goods, We concur: JAMES, J.; SHAW, J. wares, and merchandise sold to them. By

the bill of exceptions is appears that both

of the motions mentioned were presented at (15 Calpp. 444)

the same time. Among the grounds upon MERCHANTS' NAT. UNION v. BUISSER

which the motions were made it was speciET et al. (Civ. 918.)

fied that the court had obtained no jurisdic(Court of Appeal, Second District, California. tion over the defendant entitling it to render Feb. 18, 1911.)

judgment against him, and that the affidavit 1. PROCESS ($ 96*)-ORDER OF PUBLICATION- upon which the writ of attachment was isAFFIDAVITS.

sued was insufficient to authorize the issuWhere affidavits for an order for the publication of summons showed that search had ance of such writ. It was specified as a been made for defendant within the city of L. / further objection to the validity of the judg

ment that the service of summons was made decrees to operate upon. Anderson v. Goff, by publication thereof, and that the facts 72 Cal. 72, 13 Pac. 73, 1 Am. St. Rep. 34; Blanc. stated in the affidavit upon which the order v. Paymaster Min. Co., 95 Cal. 530, 30 Pac. for publication was based did not make out 765, 29 Am. St. Rep. 149; Brown v. Campa sufficient case authorizing the summons to bell, 100 Cal. 641, 35 Pac. 433, 38 Am. St. be so served. The files and records of the Rep. 314; De La Montanya v. De La Moncase were used on the hearing of the mo- tanya, supra; Boring v. Penniman, supra. tions, including the affidavit on attachment, [3] Defendant was entitled to have his and the writ.

motion to vacate the judgment granted if it [1] The affidavits, upon which the order appeared that no valid attachment had been for publication of summons was based, show- issued, and property levied upon thereunder, ed that search had been made for defendant at the time the judgment was entered. The Buisseret in the city of Los Angeles and at affidavit on attachment furnished by the and about his last place of residence, that plaintiff failed to state, as required by the members of defendant's family had informed statute, that the "attachment” was not sought persons who were attempting to secure serv- to "hinder, delay, or defraud any creditor ice of summons that Buisseret was not at or creditors of defendant.” Code Civ. Proc. home, that he was not in the state, and that $ 538. The affidavit did recite that the the informants refused to tell where the “judgment was not sought * * to hinsaid defendant was. As a part of the show. der, delay, or defraud any creditor or crediing, affidavits of four deputy constables who tors of said defendant.” The affidavit was, had attempted to make personal service of therefore, fatally defective and was wholly summons upon defendant were submitted. | insufficient to authorize the issuance of the The facts shown in the affidavits for publica- writ of attachment. “The right to an attion of summons were sufficient to justify tachment, and the mode of procedure for obthe court in finding, as it did, that defend- taining it, are the creatures of statute, deant could not after due diligence be found pending for their existence and regularity within the state, and to support the order upon the terms of the 'Code.” Kohler v. that the service of summons be made upon Agassiz, 99 Cal. 12, 33 Pac. 742. him by publication. Rue v. Quinn, 137 Cal.

[4] While it is true that the clerk performs 652, 66 Pac. 216, 70 Pac. 732; People v. but a ministerial duty in issuing the writ of Wrin, 143 Cal. 11, 76 Pac. 646.

attachment, he has no authority to issue such [2] The judgment entered against defend- writ where there is no statement in the affiant was in form a personal one for the re- davit of the facts plainly required by the covery of the amount of money sued for. statute to be set forth therein. McCusker v. Assuming that service by publication of Walker, 77 Cal. 212, 19 Pac. 382. summons against defendant who is a resi As no valid attachment had been levied dent of this state may authorize the entry of against property of defendant at the time the a personal judgment against him, the affi- judgment was entered, and this fact was davits for publication of summons used by made to appear by the records and files of plaintiff here, and the order of court based the court, defendant Buisseret was entitled thereon, made it appear that the defendant to have his motion to set aside the judgment was not within the state of California at the granted; and also his motion to vacate and time the order for publication was made, dissolve the attachment. and that he was a nonresident of the state.

The orders are reversed. De La Montanya v. De La Montanya, 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 Am. We concur: ALLEN, P. J.; SHAW, J. St. Rep. 165; Boring v. Penniman, 134 Cal. 514, 66 Pac. 739. There was no jurisdiction under the showing made to authorize the

(15 Cal. App. 347) entry of a purely personal judgment against JOHN M. C. MARBLE CO. v. MERCHANTS' Buisseret. Such a judgment could have no

NAT. BANK OF LOS ANGELES. vitality or effect at all, except where it ap

(Civ. 868.) peared that the plaintiff held property under

(Court of Appeal, Second District, California. a valid attachment at the time of its rendi Feb. 10, 1911. On Petition for Rehearing, tion. If it was made so to appear, the judg

March 10, 1911.) ment would be considered as one in rem in 1. BANKS AND BANKING ($ 140*)--ASSIGNso far as it might be satisfied out of the MENTS (8 49*) – CHECKS BY DEPOSITOR property so held under attachment. There RIGHTS OF HOLDER. is clearly no authority for the entry of a

Under Civ. Code, $$ 3254, 3255, declaring

that a check is a bill of exchange subject to money judgment against a nonresident upon the provisions affecting bills of exchange, the service of summons by publication, where drawing of a check by a depositor in a bank is there is not shown to be property of such not an assignment of the deposit or any part

thereof, and the holder of the check is a mere nonresident within this state, which the court bearer of an order drawn by the depositor, so has jurisdiction to cause its judgment and the bank failing to pay the check, though hav*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

ing sufficient funds, is liable only to the de- , Los Angeles. From a judgment granting positor. [Ed. Note. For other cases, see Banks and fied and affirmed.

insufficient relief, plaintiff appeals. ModiBanking, Cent. Dig. $$ 380-397; Dec. Dig. 8 140;* Assignments, Cent. Dig. $$ 89-94; Dec. Oscar A. Trippet, for appellant. O'MelDig. $ 49.*]

veney, Millikin & Stevens and Horace S. Wil2. BANKS AND BANKING ($ 134*)-RIGHTS AS son, for respondent.

BETWEEN BANK AND DEPOSITOR-COUNTER-
CLAIM.
Where one suing a depositor in a bank

JAMES, J. This appeal is taken from a procures the service of an attachment on the judgment by which plaintiff was awarded bank, the bank must withhold for the satisfac- certain relief, and which provided that neition of plaintiff's demand sufficient money then ther party recover costs. owed the depositor if there is such money, but

The matters in ascertaining the amount it may deduct any sought to be reviewed are presented on the matured indebtedness owing to it by the depos- judgment roll alone. itor which it could set up by way of counterclaim in case the depositor had sued for his de- as follows: Ön February 8, 1909, one John

As found by the trial court, the facts are posit.

[Ed. Note. For other cases, see Banks and T. Donnell delivered to plaintiff his check Banking, Cent. Dig. 88 353-374; Dec. Dig. 8 drawn upon the defendant bank for the sum 134.*]

of $2,685. The check was presented for pay3. GARNISHMENT ($ 105*)-RIGHTS OF PARTIES. ment on the following morning at the bank

An attaching creditor merely acquires the and payment was refused, the bank giving rights of the debtor, and a plaintiff in garnishment is in relation to the garnishee substituted as a reason for the refusal that there was merely to the rights of his own debtor, and he not sufficient funds to the credit of Donnell may enforce no demand against the garnishee to cover the required amount. Thereupon which the debtor if suing could not enforce.

plaintiff brought suit against Donnell, and [Ed. Note. For other cases, see Garnishment, had a writ of attachment issued therein on Cent. Dig. § 216; Dec. Dig. $ 105.*]

February 13, 1909, which writ he caused to 4. BANKS AND BANKING ($ 134*)--RELATION

OF BANK TO DEPOSITOR — SET-OFF-STAT- be served upon defendant. Judgment was UTES.

recovered on March 3, 1909, against Donnell Under Code Civ. Proc. $726, providing in favor of plaintiff for the sum of $2,697.02 that there can be but one action for the recov: and costs. Upon being served with the writ ery of any debt secured by mortgage, the right of a bank to set-off a matured indebtedness of attachment, defendant answered that it against the claim of a depositor or his creditor had in its possession the sum of $1,175.92 does not permit of an indebtedness secured by belonging to Donnell and subsequently dea mortgage being so used as an off-set.

livered this amount of money to the sheriff, [Ed. Note.-For other cases, see Banks and who applied it on the execution which had Banking, Cent. Dig. 88 353-374; Dec. Dig. 8 134.*]

been issued to secure satisfaction of plain5. BANKS AND BANKING ($ 134*)_RELATION tiff's judgment. Under proceedings supple

OF BANK TO DEPOSITOR -SET-OFF - STAT- mental to execution, plaintiff caused the deUTES--"PERSONAL PROPERTY."

fendant to answer further in court respectAn assignment by one of several purchasersing the amount of Donnell's deposit as it of real estate conveyed to a trustee with directions to sell and divide the proceeds among stood at the time of the presentation of the the several purchasers of his interest in the check and the serving of the writ of attachtrust agreement to a bank in which he is de- ment. Leave was thereafter obtained to positor as security for a note is an assignment bring suit against defendant to determine by way of a pledge of a chose in action constituting personal property within Code Civ. whether or not a greater sum should not Proc. $ 17, and the bank notwithstanding sec- have been accounted for by the latter. By tion 726 may off-set its matured claim on the the further findings of fact it appears that note against the deposit without proceeding to on the morning of February 9, 1909, there collect the security.

[Ed. Note. For other cases, see Banks and was credited to Donnell on general deposit Banking, Cent. Dig. 88 353-374; Dec. Dig. 8 with defendant the sum of $2,839.02; that 134.*

at that time Donnell was indebted to the For other definitions, see Words and Phras- bank on a promissory note then due in the es, vol. 6, pp. 5346–5358; vol. 8, p. 7753.]

sum of $1,573.80; that at about the hour of On Petition for Rehearing.

8:30 a. m. of February 9th the bank applied 6. TRUSTS ($ 65*)-RESULTING TRUSTS.

enough of Donnell's deposit credit to pay the Where several persons contributed to the note indebtedness so that when plaintiff's purchase of real estate, the title to which was check was presented later in the day the deconveyed to a trustee with directions to sell and divide the proceeds among the purchasers, posit was insufficient to cover the amount a resulting trust arose in favor of the purchas- required to cash it; that later, and before ers on the invalidity of the trust.

the writ of attachment was served, several [Ed. Note.-For other cases, see Trusts, Cent. checks for smaller amounts were drawn Dig. $ 94; Dec. Dig. $ 65.*]

against the deposit by Donnell, so that, when Appeal from Superior Court, Los Angeles the attachment was levied, there remained County; George H. Hutton, Judge.

only the sum of $1,175.92 to Donnell's credit. Action by the John M. C. Marble Company Payment of the $1,500 note had been seagainst the Merchants' National Bank of Icured by the assignment to defendant by

*

* An

Donnell of an interest in a certain trust right of the bank to first deduct any maturagreement, which will be noticed more par- ed indebtedness owing to it by Donnell, ticularly hereinafter. It is the contention which it would have been entitled to set up of plaintiff that the application of the credit by way of counterclaim, in the event Donof Donnell from his general deposit, in ex- nell had sued to recover the sum of his detinguishment of the debt due on the prom- posit. Zane on Banks and Banking, $ 140 ; issory note, was unauthorized, and that it McKean v. German-Am. Savings Bank, 118 did not operate to defeat plaintiff's claim to Cal. 340, 50 Pac. 656. sufficient of the deposit to satisfy its de [3] An attaching creditor is clothed with mand. It seems very clear that, if plaintiff no greater rights than the debtor himself. acquired any right of action against the He stands in the shoes of the debtor, and bank, it acquired such right only after serv- any offset which might be urged against the ice of the writ of attachment.

debtor by the garnishee is equally available [1] A check holder is a mere bearer of an against the attaching creditor. "The suing order drawn by the depositor. The making out of a process in garnishment does not in and delivery of a check does not work as any manner change the rights of the parties an assignment of the deposit fund or any to the proceeding further than to transfer part of it, and is not binding on the bank the right of the defendant to his creditor to against which it is drawn until accepted by proceed against the garnishee for the colit. The modern authorities are generally to lection of the debt due to the principal dethe effect that, even though a bank refuses fendant. It is a rule of universal applicapayment, where the deposit is sufficient to tion that the plaintiff in garnishment is, in cover the amount of the face of the check, his relation to the garnishee, substituted it becomes charged with no liability to the merely to the rights of his own debtor, and bearer of the check. The bank is in such can enforce no demand against the garnishee a case responsible to the depositor only and which the debtor himself, if suing, would may be sued by him for damages. In brief, not be entitled to recover. a bank is responsible and accountable to its other effect of this rule is that the plaintiff depositor, and the depositor, in turn, to the is liable to be met by the garnishee on his persons to whom he issues his checks. In own behalf with the same set-offs and other the case of Laclede Bank v. Schuler, 120 u. defenses that the garnishee might have inS. 511, 7 Sup. Ct. 644, 30 L. Ed. 704, the Su- terposed had an action been brought against preme Court of the United States has said : him by his own creditor, the principal de-' “The question of how far and under what fendant in the garnishment proceedings." circumstances a check of a depositor in a Shinn on Attachment, $ 487; Drake on Atbank will be considered an equitable assign- tachment, $ 536; Bolles on Modern Law of ment to the payee of the check of all or any Banking, p. 741; Schuler y. Israel, 120 U. portion of the funds or deposits to the credit s. 506, 7 Sup. Ct. 648, 30 L. Ed. 707. of the drawer in the bank is one which has [4] The right of a bank to set off a mabeen very much considered of late years in tured indebtedness against the claim of its the courts, and about which there is not a depositor or his creditor does not, however, unanimity of opinion. In this court it is permit of an indebtedness secured by a mortvery well settled that such a check, unless gage being so used as an offset. Section accepted by the bank, will not sustain an 726 of the Code of Civil Procedure provides: action at law by the drawee against the "There can be but one action for the recovbank, as there is no privity of contract be ery of any debt, or the enforcement of any tween them." See, also, Zane on Banks and right, secured by mortgage upon real or perBanking, & 146. By Civil Code, $ 3254, a sonal property." check is declared to be a bill of exchange, [5] It is the contention of appellant that and by section 3255 of the same Code it is the assignment to defendant by Donnell of made subject to all of the provisions affect- his interest in the trust agreement was an ing bills of exchange, with certain excep- assignment of an interest in real property tions which are immaterial to any question and constituted a mortgaging thereof. Cerpresented in this case. The rights of the tain real property had been transferred to a holder of a bill of exchange in case of non- trustee by Donnell and eight others who had payment on presentment are as have just all contributed toward its purchase. The been defined. We conclude, then, prelimina- trustee took title with directions to sell and rily, that, even though there was sufficient dispose of the property and divide the promoney to pay plaintiff's check to the credit ceeds among the several purchasers, includof Donnell at the time the check was pre-ing Donnell, who was to be awarded an elevsented, no right of action against the bank en one-hundredths share of such proceeds. accrued in favor of plaintiff.

Donnell when he assigned to the bank as se[2] When the writ of attachment was curity for the payment of the $1,500 note served, however, its effect was to require de his interest in this agreement assigned merefendant bank to withhold for satisfaction of ly a chose in action, an interest in a fund plaintiff's demand sufficient, if there was of money to be realized in the future by the such, of any money it then owed Donnell. sale of real property. By the making of the In ascertaining this amount, it would be the trust agreement he had converted any un

divided interest in the real property which | ceeds of the sale of the property, if the he possessed into a right only to receive same was sold, and nothing more; the bank money in lieu thereof, and this right was made no other claim; there was no attempt undoubtedly personal property. "The words to mortgage the interest of Donnell in the *personal property' include money, goods, real property. As was said in the opinion chattels, things in action, and evidences of filed, the assignment was an assignment of debt." Section 17, Code Civ. Proc. This an interest in personal property given by property was given as security by Donnell way of a pledge and not as a mortgage. to the bank was by way of a pledge and not as a mortgage. As a pledgee, defendant would have the right to offset its matured

(15 Cal. App. 459) claim on the $1,500 note against Donnell's

PATTON v. KLEMMER. (Civ. 809.) deposit without proceeding to collect on the (Court of Appeal, Third District, California. security. "The pledgee may recover the

Feb. 23, 1911.) amount of his debt from the debtor by an 1. ASSAULT AND BATTERY ($ 35*)-CIVIL LIAindependent suit without foreclosing the

BILITY – ACTIONS -- EVIDENCE-SUFFICIENpledge, whereas the mortgagee can maintain

CY.

In an action to recover damages for an asbut one action for the recovery of the debt, sault, evidence held to sustain a verdict for and that must be an action of foreclosure." plaintiff. Commercial Savings Bank v. Hornberger, 140 [Ed. Note.-For other cases, see Assault and Cal. 19, 73 Pac. 625. After applying suffi- Battery, Cent. Dig. $ 51; Dec. Dig. $ 35.*] cient money from Donnell's deposit to satis- 2. APPEAL AND ERROR (8 699*)-RECORD-INfy the $1,500 note, the defendant had in its

STRUCTIONS-REQUESTS FOR INSTRUCTIONS. possession the trust agreement and assign-quested instructions will not be considered

The refusal of the trial court to give rement thereof." These documents the trial where the record, while showing that some incourt by its judgment directed should be destructions were given, does not show how many, livered to plaintiff, when its judgment or on what subjects, or upon what phases of

the case they were given. should have become final. Plaintiff sought by its action to recover a money judgment Error, Cent. Dig. $8 2928–2930; Dec. Dig. $

[Ed. Note.-For other cases, see Appeal and against defendant, and, while it may be that 699.*] the judgment as entered awards more and different relief than plaintiff was entitled to

Appeal from Superior Court, Glenn Coununder its complaint, plaintiff can scarcely ty; John F. Ellison, Judge. complain of this fact. Assuming that the

Action by John A. Patton against Lenus J. judgment was a proper one to be entered, Klemmer. Judgment for plaintiff, and dethere would seem, however, to be no authori- fendant appeals. Affirmed. ty for the condition placed upon it, to wit, Seth Millington and W. T. Belieu, for apthat the recovery be had of the documents pellant. F. H. Dam, for respondent. mentioned only when the judgment should have become final.

CHIPMAN, P. J. This is an action to reIt is ordered that the judgment be modi- cover damages for an assault by defendant fied by striking therefrom the words "upon upon the person of plaintiff. The cause was this judgment becoming final.” As so modi- tried by a jury and plaintiff had the verdict. fied, the judgment is affirmed.

Defendant appeals from the judgment enter

ed upon the verdict, and from the order deWe concur: ALLEN, P. J.; SHAW, J. nying his motion for a new trial.

There is abundant evidence of the assault On Petition for Rehearing. and of its permanent and injurious effects PER CURIAM. The petition of appellant upon plaintiff's physical condition and to for a rehearing is denied. The question as some extent upon his mental faculties. Deto whether or not the trust attempted to be fendant does not now contend that he did not created by Donnell and others was valid, we assault plaintiff. He alleged in his answer did not deem material to a decision of this and attempted to prove at the trial that case. [6] Of course, if the declaration of plaintiff insulted him, "and by language and trust was invalid under the conveyance to immediate demonstrations of force threatenthe trustee, a resulting trust would have ed an assault upon defendant," and that "for arisen in favor of Donnell and his associates his proper protection and defense, and for who had contributed the purchase price of no other reason, used such force and means the real property; and, in that event, they as was necessary, and no more, to repel the might have demanded a reconveyance of assault which he reasonably apprehended their respective interests. The assignment was imminent and about to be made upon to the bank did not purport to convey any him by plaintiff.” Defendant also alleged in interest in real property; it was not appro- his answer that he "delivered unto plaintiff priate in form so to do, and the intent was certain sums of money, the same being for clearly to the contrary; it was plainly an disputed rent, medical services, and all and assignment of the right to share in the pro- I singular the matters and things in controver

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