Palmquist

On July 25, 1961, in this Alameda County separate maintenance action, plaintiff recovered a money judgment against defendant. In order to stay execution of the judgment pending defendant’s appeal, the parties agreed that Bank of America would hold certain funds of the defendant as security for the payment of the judgment when and if affirmed on appeal. Defendant thereby lost control over said funds or the right to the possession thereof to the extent that said funds might become necessary to satisfy the judgment. The only interest which defendant retained there *790 in was contingent upon his obtaining a reversal of the judgment. In any event, the judgment was affirmed by this court on January 25, 1963 ( 212 Cal.App.2d 322 [ 27 Cal.Rptr. 744 ]) and the Supreme Court unanimously denied a hearing on March 20, 1963. The remittitur was issued on March 27, 1963.

On March 29, 1963, at 10:40 a.m., the Sheriff of Alameda County levied a writ for the execution of the judgment upon the bank. Later on the same day defendant filed a motion to recall the execution. On April 9, 1963, the lower court denied the motion. The bank then delivered to the sheriff the amount necessary to satisfy the…