Gagossian v. Arakelian , 9 Cal. App. 571 ( 1908 )

A demurrer to the complaint was overruled. The case was dismissed as to all the defendants except Harry Arakelian. After trial the judgment went against him in favor of the plaintiff. This appeal is from the judgment on the judgment-roll.

Plaintiff alleges, and the court found, that on June 26, 1905, S. A. Gagossian was the owner of a certificate of membership No. 67 issued by the Grocers' Winery and Distillery Association of Parlier, a corporation organized under the co-operative incorporation laws of California; that on said day he sold, assigned and conveyed all his right, title and interest in said certificate of membership to the plaintiff, who ever since has been and now is the owner thereof.

The complaint also alleges, and the court found, that on November 20, 1905, John Arakelian recovered a judgment for a substantial sum against S. A. Gagossian; that thereafter, an execution having been issued and levied on this certificate No. 67, it was sold, and the sheriff executed a certificate of sale of the interest of S. A. Gagossian to the purchaser Harry Arakelian, and notified the corporation that the latter was the owner and entitled to the possession of said certificate; that by reason of these facts Harry Arakelian has prevented, and still prevents, the issuance of a new certificate of membership by the said corporation to said plaintiff. The prayer of the complaint is as follows: "Wherefore plaintiff prays for the judgment of this court determining the title to the said certificate, and adjudging that the said certificate No. 67 . . . is the property of this plaintiff, and that the said defendant Harry Arakelian has no estate, right, title or interest in or to the said certificate of membership."

Appellant contends that this is an attempt to maintain an action to quiet title to personal property; that such an action is not authorized under the practice in this state (Code Civ. Proc., sec. 738; Fudickar v. East Riverside Irr. Dist.,109 Cal. 29, [41 P. 1024]); and that therefore the demurrer to the complaint should have been sustained.

Respondent, on the other hand, contends that this is an action under the provisions of section 1050 of the Code of Civil Procedure.

We think with the appellant that the complaint does not state a cause of action. Section 1050 of the Code of Civil Procedure reads: "An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which plaintiff is bound as surety."

This section provides for an action in the nature of a billquia timet, the object of which is to prevent a party from anticipated future probable injury to his rights or interests, as, for example, when it is sought to cancel an instrument which creates at least a prima facie liability against the plaintiff, or constitutes a cloud on his title to property, or where a surety is fearful of injury from neglect of his principal to pay the debt. The section quoted incorporates into the code only part of this remedy. Under its provisions, as we read it, one may maintain an action against another to determine an adverse claim upon an alleged obligation existing between them. In this case the claim is adverse, but it is not upon an obligation between the parties, but is an obligation or duty of a third party to one of them. Hence we think the section is not broad enough to cover this case. Nor do the facts alleged in this case constitute a good bill quia timet, in this, among other things, that the respondent does not allege that she apprehends danger to her property in that the instrument held by appellant may be vexatiously or injuriously used against her when the evidence to impeach it may be lost, or that it throws a cloud or suspicion over her title. (2 Story's Equity Jurisprudence, sec. 694.) All she complains about is that the corporation, because of the claim made against it by the appellant, refused to recognize her as the legal holder of the certificate of membership No. 67. While the respondent may have a good cause of action against the corporation, the findings do not show that she is entitled to any relief against the appellant.

The judgment is reversed.

Hall, J., and Cooper, P. J., concurred.