SULLIVAN v. WELLBORN

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District Court of Appeal, Second District, Division 1, California.

SULLIVAN v. WELLBORN.

Civ. 15787.

Decided: October 17, 1947

Barry Sullivan, of Los Angeles, in pro. per., for appellant. W. S. Weatherwax, of Los Angeles, for respondent.

The present action to foreclose a judgment lien for $1,250 was filed on March 1, 1945, in the name of S. A. Sullivan, a nominal party only; the defendant Nada Truscott Wellburn cross-complained, asking for certain rents collected by Barry Sullivan from tenants occupying the real estate involved herein. The trial court, on June 24, 1946, rendered judgment denying foreclosure and decreeing that Mrs. Wellborn owned the property ‘free and clear of any encumbrance of the said judgment lien.’ It was further adjudged that S. A. Sullivan, Barry Sullivan and D. E. McGregor ‘have no estate or interest or lien in or upon the said * * * real property and they and any person or persons claiming under them shall be and by these presents are, forever barred and enjoined from claiming any estate, interest, title or lien in, to or upon the said * * * property.’ The court also adjudged that Barry Sullivan, the real party in interest, held $1,455.90 collected as rents. ‘In trust for her (Mrs. Wellborn); that Barry Sullivan shall retain the sum of $301.75 and shall file a satisfaction of judgment in case No. D182069,’ and that should Sullivan not do so the clerk should enter such satisfaction. The judgment further ordered Barry Sullivan to pay Mrs. Wellborn the sum of $1,144.15, with interest.

The present appeal constitutes a part of a long and involved series of litigations concerning certain real estate in Los Angeles County, which property appears to have been originally purchased with separate funds belonging to Nada Truscott Wellborn. The marriage between Mr. and Mrs. Wellborn was annulled on December 20, 1939, by a judgment in Superior Court action No. D182069, Robert H. Scott, Judge. It was there adjudged that Mrs. Wellborn owned the property in question, subject to a lien in the sum of $1,250 in favor of the husband, Charles Wellborn. That judgment, however, gave the husband no interest in the property, provided for no money judgment in favor of the husband, and did not specify and procedure for enforcement of the lien granted.

Barry Sullivan, as attorney for Charles Wellborn, then procured the issuance of an execution on this judgment and caused the same to be levied on the real property covered by the judgment lien; on July 1, 1940, the sheriff sold the property on execution sale to Charles Wellborn for $1,000, and after deduction for costs a partial satisfaction of said line was entered in the sum of $948.25. The sheriff's deed was executed to Charles Wellborn on July 3, 1941; on October 3, 1941, Wellborn conveyed the property to D. E. McGregor who, on January 6, 1943, conveyed to S. A. Sullivan, a nephew of Barry Sullivan. It appears that McGregor and S. A. Sullivan were merely acting for Barry Sullivan, the real party in interest. The judgment lien had been assigned by Charles Wellborn to this same Barry Sullivan.

The record discloses that on July 3, 1941, Mrs. Wallborn, the respondent herein, filed a motion to quash the execution, levy and sale hereinbefore mentioned, which motion was heard by Judge George A. Dockweiler and denied. On appeal this order was reversed (Wellborn v. Wellborn, 55 Cal.App.2d 516, 131 P.2d 48, 52), the appellate court holding that ‘if no personal liability is imposed by the judgment declaring the lien, and the judgment makes no express provision for enforcement of the lien, execution will not issue and the judgment creditor can only enforce the lien by an independent action to foreclose.’ Thereafter Mrs. Wellborn filed a motion asking for a ruling of the Superior Court in conformance with the decision of the appellate court, quashing the execution, levy and sale, and such an order was duly entered by Judge Dockweiler on November 10, 1943. Barry Sullivan, as attorney for Charles Wellborn, then filed an appeal from this order, and on January 17, 1943, the appellate court affirmed the order quashing the execution, levy and sale. Wellborn v. Wellborn, 67 Cal.App.2d 545, 155 P.2d 99, 100. The court there said: ‘The sale was declared void by the judgment of the District Court of Appeal and that judgment is conclusive, whatever the consequences may be.’ The appellate court denominated the appeal as frivolous, and as ignoring the reversal on the previous appeal. Thereafter, the present action was filed by Barry Sullivan in the name of S. A. Sullivan to foreclose the judgment lien, resulting, as hereinbefore stated, in a denial of foreclosure.

As specified in the brief, appellant's real complaint is that the ‘judgment should have been to foreclose the judgment lien.’ This claim is in part predicated upon a statement of the Supreme Court in Sullivan v. State Bar, 28 Cal.2d 488, 495, 170 P.2d 888, which was a proceeding to review a recommendation of suspension from practice of Attorney Barry Sullivan for activities in connection with the Wellborn litigation. This opinion recites that after the decision in Wellborn v. Wellborn, 55 Cal.App.2d 516, 131 P.2d 48, vacating the execution, levy and sale as hereinbefore mentioned, ‘and with full knowledge of its conclusions, (Barry) Sullivan procured a deed executed by (D. E.) McGregor which conveyed to S. A. Sullivan the property which Wellborn had purchased at the execution sale. S. A. Sullivan, who was then in military service, is the nephew of Barry Sullivan.’ [28 Cal.2d 488, 170 P.2d 890] The local administrative committee had found that this conveyance ‘was procured by respondent only for the purpose of clouding title to the said property,’ the said S. A. Sullivan then being ‘a member of this country's armed forces protected by the Soldiers' and Sailors' Civil Relief Act [50 U.S.C.A.Appendix, § 501 et seq.].’ Holding that the evidence did not clearly establish such nefarious purpose and that there was a possibility of an honest belief in the merits of Sullivan's appeal, alleged to be frivolous, the Supreme Court dismissed the disciplinary proceeding. The statement now relied upon by appellant is that found in 28 Cal.2d at page 495, 170 P.2d at page 893, of the opinion: ‘Foreclosure is the remedy which should have been invoked at the outset.’

There is no merit in this nor in any of appellant's present contentions. The remedy of foreclosure was not invoked by appellant at the outset, for some undisclosed reason. Instead, Barry Sullivan, an attorney learned in the law, saw fit to proceed by way of execution on a judgment which was other than a money judgment. Such procedure having been held invalid by the appellate court in 55 Cal.App.2d 516, 131 P.2d 48, which decision was later held binding in 67 Cal.App.2d 545, 155 P.2d 99, appellant sought the aid of an equity court by way of attempted foreclosure of the judgment lien, with the result now complained of: That foreclosure was denied and judgment rendered against Attorney Sullivan in favor of Mrs. Wellborn for rents collected and retained by Sullivan. Obviously, it must be assumed that at the foreclosure trial, appellant, an attorney at law, presented whatever law and evidence there was, pertinent to the issues involved, and that the same received due consideration. The record herein bears out such assumption.

Other than the assertion that the judgment rendered was wrong and that it should have been in appellant's favor with interest; that a set off should have been allowed; that ‘void judgments cannot be made valid,’ etc., no definite errors have been pointed out, and none are found to exist. Section 3302 of the Civil Code, providing that ‘The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest,’ is obviously inapplicable to a judgment which did not create such an obligation. Civil Code Section 1428, stating that ‘An obligation arising from the operation of law may be enforced in the manner provided by law, or by civil action or proceeding,’ has likewise no possible application to the present controversy.

Appellant's complaint that evidence of set-off introduced at the trial made it legally impossible for the court to render the judgment here appealed from is answered by the long established rule that an appellate court will not attempt to weigh the evidence which was presented to the trial court. As said in Juchert v. California Water Service Co., 16 Cal.2d 500, 503, 106 P.2d 886, 888, and many other cases, ‘It is elementary that * * * the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion * * *.’ The record herein discloses such substantial evidence, and in the words of the case just cited, ‘the reviewing court is without power to substitute its deductions for those of the jury or trial court.’

The same rule is applicable to appellant's other contentions that in the judgment rendered, the trial court should have done something other than it did do. And, as stated in the respondent's brief, ‘this entire matter was under the jurisdiction of the court in its equity capacity, * * * it had all the facts before it and weighed all the circumstances during the entire proceeding, * * * made its findings accordingly and rendered its judgment in accordance therewith.’

The records in this and the companion case of Wellborn v. Wellborn, 185 P.2d 410, together with the many different items of litigation commencing with the annulment action in 1939, reflect the truth of the appellate court's observation in Wellborn v. Wellborn, 67 Cal.App.2d 545, 548, 155 P.2d 99, 100, that ‘Undoubtedly plaintiff (Nada Truscott Wellborn) has been sorely harassed by unfounded litigation.’ The proposition that there must be an end to all litigation needs no citation of authority.

The judgment is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.