Opinion
Department Two
Appeal from a judgment of the Superior Court of Los Angeles County. Lucien Shaw, Judge.
COUNSEL:
Wells & Lee, and Calvin Edgerton, for Appellant.
Graff & Latham, for Respondent.
JUDGES: Searls, C. Britt, C., and Belcher, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
SEARLS, Judge
This is an action to recover from the defendant the sum of sixty thousand dollars as damages, for the value of certain property, to wit, diamonds, watches, and jewelry, alleged to have belonged to the estate of L. M. Wagner, an insolvent, and to have been through a conspiracy between defendant, L. M. Wagner, the insolvent, and J. B. Wagner, her husband, secreted and concealed to prevent its coming into possession of plaintiff as assignee, and which was taken possession of, converted, and in part sold by defendant. That the portion of said property sold by defendant was of the value of thirty thousand dollars, etc.
Defendant answered, denying many of the allegations of the complaint, and, as a further and separate defense, pleaded the pendency of another action in the superior court between the same parties for the same cause of action, etc., stating the facts in apt language.
The court tried the issues made by the plea in abatement and filed its written findings thereon, from which it appears -- in addition to the facts of the insolvency of L. M. Wagner, her voluntary application for a discharge, the election and qualification of the plaintiff herein as assignee, the assignment of the estate to him by the clerk, etc. -- that, prior to the insolvent's petition being filed, a portion of her estate, consisting of diamonds, watches, and jewelry, was secreted so as to prevent its coming into the possession of the plaintiff as assignee; that the defendant herein, knowing that such goods had been secreted and the purpose thereof, and to prevent their coming to the assignee, received and took possession of said concealed property, and after selling a portion thereof, retained possession of the remainder in his store in Los Angeles until the twenty-sixth day of July, 1893, when it was taken possession of by J. C. Cline, sheriff of the county of Los Angeles, under a writ of attachment in an action by M. Wunsch et al. v. L. M. Wagner, the insolvent, as her property.
H. Susskind, the defendant herein, thereupon brought an action in claim and delivery in the superior court against the sheriff to recover as his own the goods so attached. Thereupon the plaintiff in this action intervened in said action and claimed possession of the goods so attached as the assignee in insolvency of said L. M. Wagner, to whose estate he claimed the goods belonged, and he was adjudged to be entitled to the possession thereof as such assignee, as against both the plaintiff and defendant therein. It was also found that the goods attached were of the value of twenty thousand dollars. Thereupon Henry Susskind, the plaintiff in said action in claim and delivery, moved the court for a new trial in said cause, and such motion is still pending, undecided, and undetermined.
The judgment on the findings in this action upon the plea in abatement was that "this action should abate, so far as it involves any property formerly belonging to L. M. Wagner, concealed by the said Henry Susskind, and held by him in his possession in the store on South Spring street, on the twenty-sixth day of July, 1893, and on that day taken possession of by the said J. C. Cline, as sheriff of said county, by virtue of a writ of attachment then in his hands against the said L. M. Wagner, and that as to any other property of said L. M. Wagner, taken by the said Henry Susskind and sold by him prior to the said twenty-sixth day of July, 1893, and not then in his possession, the action proceed to trial." Defendant Henry Susskind appeals from the judgment on his plea in abatement.
" The law abhors multiplicity of actions; and therefore whenever it appears on record that the plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum ." (Bacon's Abridgment, tit. "Abatement," subd. M.)
The same author says: "When a writ is brought for two things, and it appears the plaintiff cannot have any other action for the one of them, the writ shall stand for the part that is good."
In order that a plea in abatement by reason of the pendency of another action may be effectual, it must appear that such former action is between the same parties and for the same subject matter, or, in other words, that it is o f such a character that, had a judgment been [41 P. 1013] rendered therein on the merits, such judgment could be pleaded in bar of the second action.
A judgment in personam "is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding." ( Code Civ. Proc., sec. 1908, subd. 2.) "A fact or matter in issue is that upon which plaintiff proceeds by his action, and which the defendant controverts in his pleading, while collateral facts are such as are offered in evidence to establish the matters or fact in issue." (Garwood v. Garwood , 29 Cal. 522.)
The rule is restricted to facts directly in issue, and does not embrace facts which may be in controversy but rest in evidence and are merely collateral. (Freeman on Judgments, sec. 257.)
The question is not simply, were given facts controverted at the former trial, but, were they in issue ? If they were not they do not come within the rule. (King v. Chase , 15 N.H. 16; 41 Am. Dec. 675; Roberts v. Robeson , 27 Ind. 454; Jackson v. Lodge , 36 Cal. 28; Gray v. Dougherty , 25 Cal. 272; Caperton v. Schmidt , 26 Cal. 493; 85 Am. Dec. 187.)
That the judgment of a court of competent jurisdiction directly upon the same point is, as a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question, is a proposition so thoroughly established as to need no argument. The question in the present case is, Were the issues in the action for claim and delivery, the pendency of which is pleaded here, the same, and between the same parties, as this action?
The action of claim and delivery is a possessory action. It is the lineal descendant of one of the early remedies given by the common law, instituted for the purpose of recovering possession of chattels, and known as replevin. The scope of its application has been greatly enlarged in modern times, but the essential object of the action remains the same, viz., to enforce plaintiff's right to the present possession of chattels, as against a defendant who unlawfully detains them, and under our law to recover their value, if possession cannot be had, together with damages for the detention.
The investigation is confined to the property mentioned in the complaint; other property cannot be brought into the controversy by answer. (Lovensohn v. Ward , 45 Cal. 8.)
In the present case Henry Susskind, the defendant and appellant here, commenced an action as plaintiff in claim and delivery against J. C. Cline as sheriff, to recover possession of certain jewelry, etc., taken by the sheriff as the property of L. M. Wagner. His cause of action -- that is to say, the ground upon which he sought to maintain his action -- was his right to the immediate possession of the property as against the detention thereof by defendant.
When the plaintiff, A. I. Hall, as assignee in insolvency of L. M. Wagner, intervened in that action, it was to enforce his own claim as such assignee to the possession of the property in dispute. By so doing he could not enlarge the scope of the inquiry by extending it to property not involved in that action, or to wrongful acts of the plaintiff therein in relation to other property. As evidence of his right to possession, intervenor could show the ownership of his assignor, the insolvent, her fraudulent and therefore void attempt to transfer it to Susskind, the plaintiff, but all these things were admissible only as evidence and in support of his ownership and right to possession, and were collateral to the question of the wrongful detention of the property by Cline, as sheriff, in whose possession it was at the commencement of the action.
In the present action Hall, as assignee, sues to recover damages for the fraudulent concealment and conversion by defendant of the property of the insolvent, L. M. Wagner.
His cause of action upon which he counts is a different one from that upon which he waged his contention as an intervenor in the former action against the sheriff and incidentally against defendant Susskind as a party to that action. Had the plaintiff here instituted that action, Susskind would not have been a necessary party to it, and it was only by virtue of his having brought it, and by reason of plaintiff Hall having intervened, that he became a party.
Roberts v. Robeson, supra, was in most respects similar to this case. That was a suit involving the validity of an assignment for the benefit of creditors, which was alleged to be void for fraud. It was attempted to conclude the assignee by pleading the record of a suit brought by him against the sheriff to recover the possession of certain property which was included in the assignment, and which had been seized by the sheriff under process against the assignor. Judgment had gone against the assignee, and it was held that the record was only conclusive as to the particular property involved in the suit against the sheriff.
The court said: "That judgment was conclusive as to Roberts against any claim he could set up by virtue of the assignment to the property involved in that action. But as to any other property covered by the assignment, the judgment could have no force. The question the jury passed upon was simply the title to the property involved in that suit, and although they, the jury, may have treated the assignment as void, it could only be established in that case as to the property involved." King v. Chase , 15 N.H. 9, 41 Am. Dec. 675, is to like effect.
The reasoning in those cases does not combat the theory that a judgment of a court of concurrent jurisdiction directly upon the point is as a plea in bar, or as evidence, conclusive between the same parties, upon the same matter, etc., but points to the broad distinction which exists between [41 P. 1014] that which is in issue in a case, and that which, though not a part of the issue, is controverted; or, in other words, the distinction between evidentiary facts going to establish the issue, and the ultimate facts involved in the issue itself.
The former may have been controverted, yet the result is not conclusive as to them, while as to the latter the judgment is conclusive if they were determined or might have been determined. In the present case the unlawful seizure gave the plaintiff a separate and distinct cause of action against Cline, the sheriff, to enforce which he intervened in the action between Susskind and said Cline.
In that action the issues were as to intervenor's right to the property as against Susskind and Cline, and the detention thereof by the latter. All the other facts were but evidentiary to those ultimate facts involved in the issue, and however much such evidentiary facts may have been controverted at the trial the result did not crystallize them as a part of the issues in the case.
It is true the plaintiff here, according to the allegations of the complaint, had at the same time a cause of action against Susskind for the fraudulent purchase or procuring of the same and other like property from his assignor in insolvency.
He could not include his action for damages as to that in the replevin suit for two reasons: 1. Because under the doctrine enunciated in Lovensohn v. Ward, supra, he could not inject this new matter into the action of replevin; 2. Because, under section 427 of the Code of Civil Procedure, a cause of action to recover specific personal property, with or without damages for withholding thereof, cannot be united with a cause of action for injury to property, and for the further reason that the separate cause of action against Susskind did not affect Sheriff Cline.
A party may not split up a single cause of action and maintain separate actions thereon, but every wrong furnishes a cause of action. All damages arising from a single wrong, though at different times, make but one cause of action. (Bendernagle v. Cocks, 19 Wend. 207; 32 Am. Dec. 448.) But wrongs perpetrated at different times by the same or by different persons furnish separate causes of action.
In this last sense plaintiff's cause of action against the defendant was distinct from that against him and Sheriff Cline, enforced in the action in which he intervened.
As a matter of course his recovery in the intervention suit diminishes by so much his right to recover in this action, just as would have occurred had the defendant herein voluntarily delivered to him and had he accepted the same property.
When the sheriff seized a portion of the goods to which the plaintiff here was or claimed to be entitled, it gave to plaintiff a cause of action against such sheriff for the goods thus unlawfully taken, but did not entitle him to intervene in that action except to recover the goods thus taken. Had the sheriff taken possession of all the property claimed by the assignee under the alleged fraudulent transfer by Wagner to Susskind, and had the plaintiff here under such circumstances intervened and claimed a part only thereof, he would have been concluded by the judgment in intervention from recovering the residue in another action.
If A is the owner of two horses, which are wrongfully taken from him by B, who transfers one of them to C, it would hardly, we think, be contended that a recovery from C of the horse held by him would be a bar to a recovery of the other horse held by B. Yet in principle the case supposed would not differ from the one at bar. It is only where a claim is founded upon one entire contract, or upon one single or continuous tortious act, that it cannot be divided into distinct demands, and be made the subject of separate actions.
The taking of a portion of the property, claimed by the plaintiff as assignee, by the sheriff constituted a separate tortious act giving to plaintiff a right of action, which was waged by him as an intervenor in the action against the sheriff, and did not conclude him in this action against the original tort-feasor, Susskind, brought to recover as to the residue of the property.
In the first action the parties were not the same as in the present one, and Hall, the assignee, was not entitled therein, as an intervenor, to introduce the evidence necessary to sustain the present action.
This being so, it follows that the court below did not err in its rendition of judgment on the plea of the pendency of another action between the same parties for the same cause of action, and the judgment appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.