Meyer v. Tully

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The complaint alleged that the plaintiff, in July, 1863, owed Tully & Durkin one hundred and ninety-nine dollars and thirty-eight cents; Katz, three hundred and eighty dollars; and Morrison & Bryant, one hundred and eighty-eight dollars; and that, being in embarrassed circumstances, it was agreed between himself and his creditors, that Katz and Morrison & Bryant should assign, without consideration, to Tully & Durkin, their claims in trust to have the same, with the claim of Tully & Durkin, put into a judgment for</p> <p>the use of each creditor, according to his interest; that the assignment was made, and the plaintiff, on the 8th day of July, 1863, confessed judgment in favor of Tully & Durkin for seven hundred and sixty-seven dollars and thirty-eight cents; that execution was issued, and, July 20th, 1863, the Sheriff returned the execution, having made two hundred and fifty-three dollars and twenty-five cents on the same over costs; that Tully & Durkin sued the judgment, and, December 6th, 1872, recovered judgment for one thousand two hundred and twelve dollars; and that December thirteenth, thereafter, the plaintiff paid defendant Pierson, who was the attorney for Tully & Durkin, three hundred dollars on the judgment; that neither Tully & Durkin or Pierson had paid any of the money received on the judgment to Katz or Morrison & Bryant; that Tully & Durkin had issued an execution on the judgment, and the Sheriff had levied on the plaintiff’s personal property, and was about to sell it, and that defendant Pierson claimed an interest in the judgment by assignment; that since the last judgment was recovered Morrison & Bryant and Katz had acknowledged and filed in the Clerk’s office satisfaction in full of their interests in the judgment; that the plaintiff had moved in the Court for an order declaring the judgment satisfied, and, on the motion, an issue of fact had been raised between the said trustee and cestui que trusts, and the Court denied the Order, leaving the plaintiff to his remedy in equity; that Pierson, if he had any interest in the judgment, received it with full knowledge of the existence of the trust, and that Tully & Durkin were insolvent. There was a prayer for an injunction restraining the collection of the judgment.</p> <p>The defendants demurred to the complaint, because it did not state facts sufficient to constitute a cause of action. The Court below granted a preliminary injunction, but afterwards dissolved the same and sustained the demurrer, and the plaintiff declining to amend, final judgment was rendered for the defendants.</p> <p>The plaintiff appealed from the order dissolving the injunction and from the judgment.</p>