WOOD (Parker), J.
Action in interpleader. Alonzo Parks and Pauline Parks appeal from an interlocutory judgment
The complaint alleged, in part, that the "Deed of Trust" was sold by the trustee, "according to law"; that each of the defendants claimed the proceeds or a portion thereof; that plaintiff intended to deposit the proceeds in court at the time of filing the complaint.
The answer of defendants Parks denied the allegations of the complaint, except that plaintiff was trustee and that plaintiff executed a trustee's deed in favor of defendant Abrahamer. Their answer also alleged that the purported trustee's sale was contrary to law; plaintiff was without authority to execute the deed; the deed was executed for the purpose of defrauding defendants Parks; they had defenses "to the purported sale" which defenses were pleaded in case Number 633655 then pending in the superior court; plaintiff and the other defendants had knowledge of such defenses prior to the sale; defendants Vandernoot and plaintiff induced defendants Parks to execute the trust deed by false representations which were set forth in said case Number 633655; the note was fraudulently obtained by defendants Vandernoot and plaintiff; defendant Abrahamer knew prior to the sale that the note had been fraudulently obtained; there was a failure of consideration for the note and trust deed.
A demurrer of defendants Vandernoot to the complaint was sustained with leave to amend. The amended complaint was substantially the same as the complaint, except that it alleged further as follows: that plaintiff had deposited the proceeds of the sale with the county clerk; the Vandernoots claimed the proceeds as beneficiaries under the trust deed; defendant Abrahamer, as a junior lienholder, claimed any surplus above the amount to which the Vandernoots were entitled; that prior to the commencement of the action the defendants Parks orally claimed the proceeds, stating that the note and trust deed were usurious and there was a failure of consideration for them.
The answer of defendants Vandernoot to the amended complaint
Defendants Parks did not answer the amended complaint. On November 3, 1955, the date of the trial, and prior to the time the case was transferred from the department of the presiding judge to a trial department, the attorney for defendants Parks filed a disclaimer of interest in the proceeds of the sale.
The attorney for defendants Parks filed written objections to proposed findings. It may be stated generally that the objections were to findings which were to the effect that the sale was fairly conducted and made according to law; that the Vandernoots paid $7,308.45 to appellants as consideration for the note and trust deed, and there was no fraud. On the margin of the written objections, the judge wrote: "Considered and denied."
On November 17 findings were filed. There was one set of findings, and there were two judgments — the interlocutory judgment (discharging plaintiff from liability) and the judgment (determining the claims). Also on November 17, the judgment
The findings were that the allegations of the amended complaint were true, and that the allegations of the answer of defendants Parks "to the complaint herein" were not true, with the exception of certain allegations which it is not necessary to state here. The court also found that the sale was fairly conducted and made in compliance with all statutory requirements; and that defendants Vandernoot paid $7,308.45 to defendants Parks as consideration for the note and trust deed; and that no fraud was practiced on defendants Parks by plaintiff or defendants Vandernoot or defendant Abrahamer.
It thus appears that the interlocutory judgment was entered (November 21) four days after the judgment was entered (November 17).
As above stated, the appeal herein is from the interlocutory judgment.
Appellants (Parks) contend that the court made findings that were in excess of the scope of an action in interpleader. The findings so referred to are: (1) That the sale was fairly conducted and made in compliance with all statutory requirements; and (2) that the Vandernoots paid $7,308.45 to the Parks as consideration for the note and trust deed, and there was no fraud. Apparently the principal concern of appellants on this appeal is that, in their "pending case" against the escrow company, the company might "plead res judicata by virtue of the Findings to the effect that the sale was valid." Appellants also assert in effect that the findings pertained to the allegations of the amended complaint, whereas "the only complaint before the Court as far as these appellants are concerned is the original complaint."
In paragraph 2 of that judgment it was provided that "the defendants do interplead, litigate and settle their several claims, demands and matters in controversy in this suit between themselves." Appellants are not aggrieved by that provision unless the word "defendants" as used therein was intended to include defendants Parks (appellants) and to mean that they should interplead. It does not seem reasonable that that was intended. Appellants had filed a disclaimer, as recited in the interlocutory judgment. They were not present, nor represented, at the trial. The defendants who were present and represented at the trial, as recited in the interlocutory judgment, were the defendants Vandernoot and Mrs. Abrahamer. The use of the word "between," rather than the word "among," in paragraph 2, indicates that two defendants, or groups of defendants, were referred to. It is reasonable to assume that the "defendants" referred to in that paragraph were the Vandernoots and Mrs. Abrahamer. Furthermore, the interlocutory judgment was signed on the same date that the (final) judgment was signed and entered (November 17), thereby indicating that it was not intended that the absent defendants (Parks) should interplead. There was no opportunity for them to interplead, if it was so intended. It is to be noted also that the (final) judgment determining the interests of the Vandernoots and Mrs. Abrahamer was entered on the same date it was signed, which was four days before the interlocutory judgment was entered.
The appeal is dismissed.
Shinn, P.J., and Vallée, J., concurred.
"1. Plaintiff is hereby discharged from all liability to any of the defendants, and defendants, SARAH ABRAHAMER and PHILIP VANDERNOOT and PEARL VANDERNOOT are hereby discharged from any and all liability to plaintiff for attorney's fees and court costs.
"2. The County Clerk of the County of Los Angeles is hereby ordered and directed to forthwith pay to PHILIP VANDERNOOT and PEARL VANDERNOOT the sum of $8,523.14.
"3. The County Clerk of the County of Los Angeles is hereby ordered and directed to pay to SARAH ABRAHAMER forthwith the sum of $1.00."
"1. That the Complaint is properly brought by plaintiff in this action and that plaintiff be, and it is hereby, dismissed from this cause and discharged from all liability to all and any defendants in this action with respect to said fund but that, pursuant to stipulation between the parties, said plaintiff is not entitled to its costs of action;
"2. That the defendants do interplead, litigate and settle their several claims, demands and matters in controversy in this suit between themselves."