Abdallah v. Jacob

PLUMMER, J.

This appeal is presented upon a bill of exceptions setting forth only the findings, conclusions of law and judgment of the trial court. The names of the defendants are variously spelled “Jacob” and “Jacobs”.

The court found that on or about the sixteenth day of June, 1921, the plaintiff recovered judgment against M. J. Jacob for the sum of $1158.27. Thereafter, and following proceedings instituted therefor, on or about the seventh day of November, 1933, the trial court entered an order that execution be issued for the enforcement of the judgment referred to, and on the tenth day of November, 1933, execution was issued. On the twenty-ninth day of January, 1934, the sheriff of the county of San Joaquin levied said execution upon the property of M. J. Jacob, and particularly upon a certain “Terraplane Eight” sedan automobile, motor number 19064, as the property of the defendant M. J. Jacob, by taking said automobile into his possession under said writ of execution. At the time of the levy of the execution the automobile referred to was in the possession of the defendant M. J. Jacob. Following the levy of the execution, the appellant herein filed a third party claim which was duly heard and passed upon by the trial court, and on February 23, 1934, judgment was entered to the effect that said appellant had no right or title to the automobile as a third party claimant against the right of the plaintiff, under and in pursuance of the execution heretofore referred to. The appeal is from this judgment and the order of the trial court refusing to vacate and set aside said judgment and enter judgment in favor of the third party claimant.

The findings show that on the nineteenth day of May, 1933, the defendant M. J. Jacob bought the automobile in question from the Superior Auto Company as the

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seller thereof, for the sum of $996.80, being given ‘a trade-in credit in the sum of $500 for an old automobile, leaving a deferred balance of $496.80, payable in installments of $41.40 each. The automobile was bought under a conditional sales contract. Following the execution of the conditional sales contract the same was assigned to the Industrial Finance Company of Lodi. Application was thereupon made to the division of registration department of motor vehicles of the state of California, and registration was had designating the Industrial Finance Company of Lodi as the legal owner, and M. J. Jacob, the defendant, as the purchaser thereof. Subsequently, payments were made according to the terms of the contract, until the amount due on the automobile was reduced to the sum of $331.20.