de Jesús Torres v. Caribbean Trucking Co.
de Jesús Torres v. Caribbean Trucking Co.
Opinion of the Court
delivered the opinion of the Court.
On September 30, 1948 the district court of San Juan entered judgments in favor of the plaintiffs in the aggregate sum of $10,400 in the above-entitled suits for damages against Caribbean Trucking Company. On March 18, 1949 we dismissed appeals from these judgments for abandonment, and our mandates to that effect reached the district court on April 4, 1949. On April 21, 1949, pursuant to a “motion for execution of judgment” by the plaintiffs, the district court of San Juan entered an order in each case directing Eduardo R. Bonar and Pepita Santiago, President and Treasurer, respectively, of the defendant corporation, to appear on a specified date in order to consign the amounts of the judgments in the district court; and if they did not consign these sums, they were to appear to testify to give their reasons therefor, and to testify under oath as to their assets and liabilities and as to the assets and liabilities of the corporation, under pain of contempt. The corporation and the two officers have appealed from these orders.
The first assignment is that the orders were premature. The appellants contend that § 269 of the Code of Civil Procedure, 1933 ed., applies to this case; that § 269 provides that the marshal must return a writ of execution
The appellees in effect concede that they have not complied with the requirement of § 269 that a writ of execution ■must be returned unsatisfied before the district court may require the judgment debtor to answer upon oath concerning his properties. But they argue that the proceedings which have already taken place under their motions to attach property to secure the effectiveness of the judgments make this requirement of § 269 futile and unnecessary in this case. In support of this contention, they rely on certificates of the Secretary of the district court of San Juan that after the ■judgments became firme, on motions of the plaintiffs in each case, the district court on November 17, 1948 “entered an order of attachment of the property of the defendant, to secure the effectiveness of said judgment; that on November 19, 1948, the marshal of the district court of Ponce, in execution of the said order of attachment, attached all the property of the defendant; that on December 22, 1948, by judgment of the Hon. R. Cordovés Arana, Judge of said district court of San Juan, the said attachment was vacated, in a third party proceeding, as the properties attached were not the property of the defendant.”
The appellants also argue that compliance with § 269 is unnecessary when the judgment debtor is insolvent. We do not stop to determine if that is the rule as we find nothing in the record which shows affirmatively that after the judgments became firme the defendant corporation was insolvent.
The appellants argue that there is no statutory authority for the provision in the orders that the corporation and its officers shall consign the amounts of the judgments in the district court. The provision as to the officers, as hereinafter noted; was unwarranted. But insofar as it applied to the corporation, although not specifically authorized by statute, we find it harmless. It was in legal effect merely a restatement that the amounts named were owed on the judgments. But we need hardly state that failure to consign these sums would not authorize punishment for contempt. That could result only from failure to appear or refusal to answer under oath as to properties of the judgment debtor, as provided in § 269. See § 276, Code of Civil Procedure.
The appellants also complain that the order improperly required the President and Treasurer of the corporation to answer as to their own properties. We agree that this provision of the order was not justified. The appellees contend that under some circumstances officers of a corporation are personally liable for the debts of a corporation. But until that alleged liability is reduced to a personal judgment, the officers may not be questioned under § 269 as to their
Finally, the orders required the officers of the corporation to appear in the district court of San Juan for questioning, despite the fact that they reside in Ponce. Under § 269 the officers of a corporation may be questioned as to the properties of the corporation when the latter is a judgment debtor. South Bend Toy Manuf'g. Co. v. Pierre Fire & M. Ins. Co., 56 N. W. 98, 100 (S. D., 1893); Liberty Bank v. Superior Court, 235 P. 995 (Calif., 1925). But § 269 requires examination in the district where the “judgment debtor” resides. Where the examination is of officers of a corporate judgment debtor, we construe § 269 to mean that the examination must be conducted in the district where the officers reside. The officers herein must therefore be examined in Ponce, not in San Juan. However, although the examination is conducted in Ponce, the order therefor must be issued by the district of San Juan, where the judgments were entered, directing examination either by a referee or by the district court of Ponce. Corcoran v. Harris, 270 P. 391 (Calif., 1928).
The orders of the district court will be reversed and new orders will be entered dismissing in each case the “motion for execution of judgment” of April 21, 1949, without prejudice to the right of ‘the appellees to move in the district
Section 269 reads as follows:
“When an execution against property of the judgment debtor, or of any of several debtors in the same judgment, issued to the marshal of the district where he resides, or if he do (does) not reside in said district, to the marshal of the district where the judgment roll is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return is made, is entitled to an order from the judge of the court, requiring such judgment debtor to appear an answer upon oath concerning his property, before such judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor must be required to attend before a judge or referee out of the district in which die resides.”
Cf. § 272 of the Code of Civil Procedure, which reads as follows:
“After the issuing or return of an execution against property of the judgment debtor, or of anyone of several debtors in the same judgment, or upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has money or property of such judgment debtor, or is indebted to him in any amount exceeding fifty dollars, the judge may, by an- order, require such person or' corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same.”
Coleman v. Galvin, 177 P.(2) 606 (Calif., 1947) holds that the order of examination may be issued by the district court where the person to be examined resides. But the Coleman case was decided after the California statute was specifically amended to make this possible. Section 269 has not been so modified.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.