Kirk White & Co. v. Bieg-Hoffine Co.

WILLIS, J.,

pro tem.

This is an appeal by plaintiff from an adverse judgment in an action instituted by it to recover damages arising from an alleged wrongful release of an attachment and subsequent conversion by defendants of the personal property so released.

The facts shown in the evidence and as found by the trial court, in so far as they are pertinent herein, are as follows: On June 24, 1931, plaintiff commenced an action against one Clarence M. Wold to recover the sum of $7,000 with interest and attorneys’ fees on a promissory note, and on the same date caused a writ of attachment to be issued and levied by the sheriff of Los Angeles County upon 35 described automobiles of the value of $15,000 then in the actual possession of Wold on the premises leased and occupied by him as a place of business of selling automobiles. On June 27, 1931, defendant Bieg-Hoffine Company, by its secretary, made and delivered a third party claim under the provisions of the Code of Civil Procedure to the sheriff, wherein said defendant asserted its claim of ownership of said attached property. No indemnity bond being presented by plaintiff nor any proceedings having been taken to determine title to said property, the sheriff, after the expiration of five days, released the whole of said property to defendant Bieg-Hoffine Company, which company took and retained the same to its own use and benefit. On July 16, 1931, judgment was entered in the action against Wold, the amount of which has since been reduced by partial satisfaction obtained through levies by execution process to the sum of '$6,293,49, with interest at seven per cent from July 16, 1931. The court found upon probative evidence that Wold did not furnish or pay any of the purchase price of the automobiles attached, but that defendant Bieg-Hoffine Company furnished all the money used in the purchase thereof and that they were “floored in the premises of said Wold for sale by Wold”; that at the time of purchase an invoice for purchase of each of the automobiles was made out in the name of Wold and such automobiles were each

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delivered to Wold by the maker and original seller and “after such delivery to Wold remained in his premises and that the ownership in, possession of and control over said automobiles by Wold was as aforesaid and not otherwise”. Upon the admissions in the pleadings and upon its findings the court concluded that the third-party claim was in due form and properly filed; that all the title, ownership and possession of Wold was at all times, particularly at the time of said attachment, taken and held in trust by Wold for the defendant Bieg-Hoffine Company, which was at all of said times and thereafter the equitable owner of each and every of said automobiles so attached, and that said defendant did not convert any of said automobiles but was justified in its claim of ownership and in receiving and disposing of said automobiles as its own property.