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


Civ. 15850.

Decided: October 17, 1947

W. S. Weatherwax and Lorrin Andrews, both of Los Angeles, for appellant. Barry Sullivan, of Los Angeles, for respondent.

Reference is hereby made to the companion case of Sullivan v. Welborn, 185 P.2d 407, for a knowledge of such pertinent facts as are not herein stated.

The present appeal is from an order entered April 2, 1946, granting the ‘Motion of Barry Sullivan to expunge partial satisfaction of judgment and to reinstate judgment lien as of July 18, 1940.’ The motion was made by Barry Sullivan in propria persona ‘To erase the partial satisfaction of judgment entered on return of the Sheriff's certificate of sale and reinstate the judgment lien as of July 18, 1940 on the grounds that the execution sale has been adjudged to be void by order of this Court based upon the Appellate Court's opinion on file herein and on the grounds that the applicant is the successor in interest to the purchaser at said sale.’

On December 20, 1939, a judgment was entered in the present case, annulling the marriage between Mr. and Mrs. Wellborn, decreeing that the wife, appellant herein, owned certain real estate, subject to a lien of $1,250 in favor of the husband, Charles Wellborn. Thereafter, on application of Barry Sullivan, Wellborn's attorney, execution was issued on this judgment; at the sheriff's sale the property was bid in by the husband for $1,000, and a partial satisfaction of the lien entered in the sum of $948.25. Charles Wellborn assigned the lien to Barry Sullivan, and after receiving the sheriff's deed, conveyed the property to one D. E. McGregor who in turn conveyed to S. A. Sullivan, Barry Sullivan's nephew then in military service. McGregor and S. A. Sullivan apparently took title for and in behalf of Barry Sullivan, the real party in interest. An order denying the wife's motion to set aside the execution, levy and sale, was reversed by the appellate court (55 Cal.App.2d 516, 131 P.2d 48), for the reason that no execution could properly issue because no personal liability was imposed by the judgment. On the husband's appeal filed by Barry Sullivan, Wellborn's attorney, complaining of a subsequent order made in conformity with that decision, the appellate court held in 67 Cal.App.2d 545, 155 P.2d 99, 100, that ‘The sale was declared void by the (previous) judgment of the District Court of Appeal and that judgment is conclusive, whatever the consequences may be.’ The latter appeal was denominated as frivolous. Barry Sullivan then filed an equity action to foreclose the judgment lien, resulting in a denial of foreclosure, and a money judgment in favor of Mrs. Wellborn for certain rents which had been collected and retained by Sullivan. That judgment has this day been affirmed by this court in the companion case hereinbefore mentioned. After the trial court's decision denying foreclosure of the judgment lien, Sullivan then made a motion to expunge the partial satisfaction of this lien and to restore the lien, which motion was granted in another department of Superior Court from that which had heard the foreclosure case. Nada Truscott Wellborn now appeals from this order.

Notwithstanding the nominal title of the instant case, it is apparent that Barry Sullivan who, in propria persona, made the motion resulting in the order now appealed from, is the actual respondent. This is the same Barry Sullivan, originally attorney for Charles Wellborn, who is the appellant in the companion case hereinbefore referred to. Moreover, the records indicate that the entire Wellborn litigation, commencing with the origianl annulment judgment in 1939, has, by reason of the various actions, motions, judgments, orders and appeals, heard before many different judges and courts, become unduly involved. This unfortunate, and apparently unnecessary complication, has naturally resulted in a certain obscurement of both law and fact, together with judgments and orders not always entirely consistent. Fundamentally, the issues in the instant appeal are part and parcel of those this day decided in the companion case, Sullivan v. Wellborn, 185 P.2d 407. Furthermore, it is deemed that the entire controversy with all possible ramifications thereof, was duly presented to and considered by the trial court in the foreclosure action instituted by Barry Sullivan. In that action the trial court, sitting as a court of equity, denied foreclosure, and in a comprehensive judgment, set the matter at rest for all time. The motion dealt with in the present appeal is merely another attempt to further complicate a matter already replete with complications.

In the appellant's brief attention is called to the fact that ‘in this case Barry Sullivan proceeded in an action in equity (foreclosure) first and pursued it to a definite conclusion, prior to the time he attempted to pursue his remedy at law (the present motion) * * * the court will readily ascertain from the findings of fact and conclusions of law set forth in case No. 499987 (the foreclosure action), that the question of the marginal entry of partial satisfaction of the said judgment * * * was a matter which was necessarily involved in the said proceedings in equity, and that the issue was definitely made thereon, conclusions of law predicated on said findings and judgment entered accordingly.’ The record in the foreclosure case discloses that the findings of fact adverse to Sullivan's claims were filed on March 8, 1946; on March 27, 1946, Sullivan filed the present motion seeking to reinstate the judgment lien. Appellant Mrs. Wellborn, concludes that ‘having made his election and having pursued the (foreclosure) matter to a conclusion, and having failed in his cause in case No. 499987, he (Sullivan) may not now be allowed to pursue a legal remedy. To permit him to do so would work a hardship on the appellant and would leave us with two diametrically opposed judgments standing in the records, with the result that there would be never-ending litigation.’ The respondent's brief offers no answer to, or explanation of this point.

‘It is a general rule,’ quoting from 10 Cal.Jur. 1, ‘that a party having two or more coexisting modes of procedure and relief allowed by law on the same state of facts, one of which is inconsistent with the other, may not pursue both but must choose between them and when, with knowledge of the facts, he has clearly elected to proceed upon one, he is thereby bound and will be estopped from invoking the other. * * * the judgment in the first remedy he pursues is conclusive between the parties, not only upon the matters actually litigated, but upon every ground of recovery.’ In addition to the doctrine of estoppel, applied or extended in the application of such rule, it said to rest ‘also upon one of the underlying or fundamental concepts of the reformed procedure, to wit, the prevention of a multiplicity of suits.’

It seems obvious that the law cannot permit the existence of two inconsistent judgments or orders such as seem now to exist in the instant case—one holding that Barry Sullivan does not possess ‘any estate or interest in or upon’ said real property, and that Sullivan and his associates are ‘forever barred and enjoined from claiming or asserting any estate, interest, title or lien in to or upon the said * * * real property’; the other—an order issued by a different judge, granting the ‘motion of Barry Sullivan to expunge partial satisfaction of judgment and to reinstate judgment lien.’ Cases cited by the respondent, for example, Smith v. Reed, 52 Cal. 345, are in no respect similar to the present situation; as appellant has pointed out, in the Smith case there was no intervening equity action. Nor does Section 708 of the Code of Civil Procedure, erroneously cited by respondent as Section 108, providing two different procedures for purchasers at execution sales ‘evicted’ or ‘fail[ing] to recover possession’ in consequence of irregularities, etc., affect the present situation in the least. In this connection it may be noted that, in place of being evicted or failing to recover possession, Sullivan occupied the premises, collected a considerable sum in rents therefrom, and retained the same. All of these matters have received due consideration in the foreclosure hearing. There is, in fact, no merit to any of the points raised in the respondent's brief.

The order appealed from, granting the motion to Barry Sullivan to expunge the partial satisfaction of judgment and to reinstate the judgment lien, is reversed with directions to enter an order denying such motion.

DORAN, Justice.

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

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