Harry J. Coffman v. Cobra Manufacturing Company

(dissenting).

We originally concurred in Judge Stephens’ opinion holding that under California law, Secs. 717, 719, 720, Code of Civil Procedure, Coffman was entitled to the benefit of a plenary action to determine his claimed set-off against the moneys found due by the Master from Coffman to Aircraft, arising from Coffman's misappropriations.

If Coffman may legally press this claim of set-off, we are still in accord with the decision that Coffman is entitled to a plenary proceeding in which to assert the set-off.

But after the petition for rehearing was filed we again examined the whole case and we are convinced that Coffman should not be permitted anywhere, in summary or plenary proceedings, to pursue his alleged set-off. Since there was ample evidence to support the Master’s findings of Coffman’s appropriations from Aircraft, and his debt to Aircraft arising therefrom, this was properly determined in the summary proceedings under Sec. 719 C.C.P. and the judgment of the trial court should have been affirmed.

We regret we were unable to convince our colleagues of the validity of this position. It is only because the case, as now decided, (and to which we heretofore gave our…