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District Court of Appeal, Second District, Division 2, California.


Civ. 10368.

Decided: September 24, 1935

Horton & Horton, Joseph K. Horton, and Holbrook, Taylor, Tarr & Horton, all of Los Angeles, for appellant. Louis Ferrari, of San Francisco, and Edmund Nelson and G. L. Berrey, both of Los Angeles, for respondents.

The primary contention of the plaintiff (appellant) on this appeal is that the trial court erred in holding that it was without jurisdiction to enter judgment against the respondents (who were not parties to the action) and in refusing to give judgment against them for that reason.

The plaintiff filed his complaint in the customary form for money had and received against the Eagle Rock State Bank and the Monterey Park Commercial & Savings Bank, hereafter called the defendants. The defendants answered, and judgment was entered that plaintiff take nothing by his action. Upon appeal from said judgment, the District Court of Appeal, Third Appellate District, reversed the judgment of the trial court, with directions to render judgment against the defendants. Nordin v. Eagle Rock State Bank et al., 139 Cal. App. 584, 34 P.(2d) 490. Upon filing the remittitur in the superior court, an order to show cause was issued directed not only to the defendants but to the respondents herein, who, as heretofore stated, were not parties to the action, upon an affidavit setting forth that the respondents had purchased all of the business and assets of the defendants and the consolidation of the respondents. The affidavit also set forth the assumption of all the liabilities of the defendants by the respondents. Upon the hearing of said order to show cause, the respondents made a “special and limited appearance,” calling attention to the fact that the order to show cause was not supported by any petition or motion; that neither of the respondents was a party to the action; and that the court was without jurisdiction to enter any judgment in the action against them. Upon the hearing of the order to show cause, the trial court ordered judgment against the defendants in favor of the plaintiff, but denied judgment against the respondents. The appeal is from the judgment in so far as the same does not provide for judgment against the respondents.

It should be noted that the plaintiff does not claim there was a consolidation of the defendant and the respondent banks such as results in both banks continuing their identity in the consolidated corporation such as is provided for by section 31a of the Bank Act (St. 1909, p. 87, § 31a, as added by St. 1913, p.152, as amended by St. 1929, p. 448) and such as it is claimed took place between the respondents herein.

The plaintiff furnishes authorities in support of its contention that the respondents through the purchase of the assets of the defendants succeeded to all obligations and liabilities of the defendants, but in all of these cases cited by the plaintiff the successor bank was a party to the action, and as such had been given its day in court after due process. In none of such cases was it sought to obtain under an order to show cause a judgment against a purchasing bank in an action to which the latter was not a party. Supposing that the respondent banks had purchased the defendant banks, thus assuming the obligations of the defendant banks, still the respondents are entitled to their day in court, either on a supplemental complaint in the original action or in a new and separate action, on the question whether they had purchased the defendant banks. We have not been cited to any authority in law, and we know of none, which would permit a judgment against an assumer for an obligation assumed by it otherwise than by an action in which such assumer is a party. The plaintiff's contention is contrary to our judicial notions of due process. Since the trial court did not have jurisdiction to enter judgment against the respondents, the other contentions of the plaintiff need not be discussed.

Judgment affirmed.

CRAIL, Presiding Justice.

I concur: WOOD, J.

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