In Re Braun

The material facts in this proceeding are as follows: An action was begun in the superior court of San Diego County entitled The First National Bank of San Diego, a Corporation, Plaintiff, v. John Braun and Mrs. M. E. Braun, Defendants, to foreclose a certain chattel mortgage. After the necessary steps had been taken, a decree of foreclosure and order of "sale were duly made and entered; a commissioner was appointed to make the sale, which was regularly held, and the commissioner made his report showing that the amount realized therefrom was $325; a deficiency judgment was then entered in the ordinary form for $492.79, the amount remaining due under the decree; thereafter plaintiff made affidavit that the defendant J. N. Braun had certain of the articles covered by the chattel mortgage in his possession, and that he refused to deliver them to the commissioner, and asked that an order to show cause be made directing the defendant J. N. Braun to produce said articles before the superior court of the county of San Diego; the order was issued as prayed for, the hearing of which, after continuances from time to time, was finally set for the eleventh day of October, 1920; defendant did…

I concur in the judgment and in the opinion of Mr. Justice Craig, but desire to state somewhat more fully the reason why, in my opinion, the court was without jurisdiction in the proceeding wherein it was sought to bring petitioner from Los Angeles County, the county of his residence and place of business, to submit himself for examination before the superior court of San Diego County.

Respondent expressly disclaims the idea that the proceeding in question is that which is provided by section 714 et seq. of the Code of Civil Procedure. Indeed, if the proceeding wherein petitioner was cited to appear before the superior court for San Diego County were a supplementary proceeding for the examination of a judgment debtor under section 714 et seq., there could be no question as to the invalidity of the order requiring his appearance in San Diego. Section 714 expressly provides that “no judgment debtor must be required to attend before a judge or referee out of the county in which he resides, or in "which he has a place of business.” Respondent’s contention, as I understand it, is substantially this: After the entry of the deficiency judgment against petitioner, who is one of the two…