Crofts & Anderson v. H. L. Petersen Construction Co.

PETERS, P. J.

In June of 1953, Crofts and Anderson secured a judgment by stipulation against C. R. Petersen,1 and his firm, the H. L. Petersen Construction Company, in the amount of $2,816.41, plus costs. Subsequently, the sheriff, pursuant to a writ of execution, levied on three Arabian

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horses then in the possession of Petersen. Catherine Laguens, mother-in-law of Petersen, filed a third party claim to the horses, claiming to have purchased them from Petersen for $3,000 on December 5, 1952. At the termination of the hearing of the petition to determine title the trial court concluded that Catherine Laguens “was and is the owner and entitled to the possession” of the three horses, and entered its judgment accordingly. From that judgment Crofts and Anderson appeal.

Respondent has refused to pay the costs and fees incident to defending her judgment, with the result that no brief has been filed in her behalf. Under such circumstances, this court is under no duty to look up the law, if any, in support of the judgment, nor are we required to search the transcript for evidence upon which the judgment may have been predicated. We are entitled to accept as true the statement of facts in the appellant’s brief. (Rule 17, subd. (b), Rules on Appeal; see discussion and collection of cases 4 Cal.Jur.2d p. 334, § 496.)

Respondent owns and operates a realty company that also makes loans. On January 24, 1949, she loaned her son-in-law, Petersen, $10,000, evidenced by a note signed by Petersen and his wife calling for monthly payments of $100, and 5 per cent interest. The last payment made on this note was in October of 1952, at which time the note was one year delinquent. Since that date the books of respondent show $8,084.12 still due. On December 5, 1952, Petersen and his wife executed and delivered to respondent a “Bill of Sale” to many items of personal property, including the three horses here involved. The bill of sale recites that, in consideration of the cancellation of the $10,000 note, “the receipt of which cancelled note is hereby acknowledged,” the Petersens sell the described personal property to respondent. This bill of sale was recorded in the county clerk’s office.

Admittedly before, at the time, and at all times after the bill of sale was executed, the horses remained in the possession of Petersen, and were in his possession when the sheriff seized them pursuant to the writ of execution. An employee of the respondent testified that the bill of sale was not given in consideration of the cancellation of the note, as the bill of sale recites, but was taken as security for repayment of the obligation. Respondent stated that she would reconvey to Petersen if the note, plus interest, were paid, but that the bill of sale was not taken as security. Petersen testified