Shivell v. Hurd

Second Dist., Div. One.

Jan. 16, 1953.]

ARTHUR SHIVELL, Respondent, v. JOHN HURD et al., Appellants.

COUNSEL

S. V. O. Prichard for Appellants.

Arthur Shivell, in pro. per., for Respondent.

OPINION

PATROSSO, J. pro tem.

These two appeals by the defendants are from an order directing the issuance of a writ of execution in favor of O. T. Gilbank, the trustee in bankruptcy of the plaintiff Arthur Shivell, one being taken from the minute order and the other from a subsequent formal order signed by the trial judge. This is the same action as that involved in Shivell v. Hurd, 2d Civil 19208, ante, p. 405 [252 P.2d 62], this date decided. [1] Subsequent to the making of the order involved in the appeal last mentioned, the trustee in bankruptcy caused himself to be substituted as plaintiff in the place of Arthur Shivell and made a motion for the issuance of a writ of execution on the judgment in said action which was granted by the court. Since these appeals were taken the bankruptcy court authorized the abandonment by the trustee of all interest in and to the judgment in question, and pursuant thereto the trustee has executed an assignment [115 Cal. App. 2d 410] of all his right, title and interest in and to said judgment to Arthur Shivell, the original plaintiff, who has now been substituted as plaintiff herein in the place and stead of the trustee.

Inasmuch as we have in 2d Civil 19208 reversed the order of the trial court refusing to appoint the appraisers upon the application of the plaintiff Arthur Shivell, it follows that the trial court erred in making the order here appealed from pending the appeal by plaintiff Arthur Shivell from the previous order. Accordingly, the order is reversed, the parties to bear their own costs of appeal.

Doran, J., and Drapeau, J., concurred.