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District Court of Appeal, Third District, California.


Civ. 5617.

Decided: December 31, 1936

J. O. Stemmler and Walter F. Lynch, both of Stockton, for appellant. Joseph Delucchi, of Stockton, and Charles P. Snyder and George F. Snyder, both of San Andreas, for respondent.

This action was commenced by the filing of a complaint for money had and received. To the complaint David Thompson, now deceased, set up a counterclaim for money advanced for the account and benefit of plaintiff. After trial the court offset the demands of the parties and gave judgment in favor of defendant for the difference.

After judgment plaintiff raised the point that the counterclaim was improper. The facts disclose that some time prior to the filing of this complaint Thompson, as plaintiff, had commenced an action in a class A justice's court to recover from Buckman some $400 and caused an attachment to issue. Thereafter judgment was entered in favor of Thompson, and upon execution the money held under attachment was paid to him. Later upon an appeal to the superior court the judgment was reversed on the ground the action was prematurely brought.

Thompson refused to repay Buckman the money so taken upon execution, and Buckman now brings this action to recover the same. To this action Thompson set up a counterclaim which was based upon the same cause of action that had been dismissed on the appeal from the justice's court.

To the judgment setting off the amount so claimed by Thompson, Buckman here appeals, claiming defendant herein could not retain the money recovered upon the execution which had been set aside and set up the same as a counterclaim to the demands of plaintiff. With this contention we must agree and deem it necessary to cite only the case of Levy v. Drew, 4 Cal.(2d) 456, 50 P.(2d) 435. This case will also be found reported and annotated in 101 A.L.R. p. 1144, where numerous authorities are cited supporting the rule there laid down to the effect that “one sued for the amount collected by him under an execution issued on a judgment subsequently vacated cannot set off the amount of the claim for which the judgment was rendered.”

The judgment must therefore be reversed, and it is so ordered.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; PLUMMER, J.