Noland v. Noland

DORAN, J.

The third party claimant appeals from a judgment rendered against it in a proceeding pursuant to section 689 of the Code of Civil Procedure to determine title to a certain automobile registered in the name of the judgment debtor and upon which a levy of execution had been made. An appeal is also attempted from an order denying appellant’s motion for a new trial, “to vacate the judgment,

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to strike the cost bill, to strike the findings of fact and conclusions of law and to tax costs”.

Appellant, the legal owner and chattel mortgagee of the car in question, claims title by virtue of a pledge sale of the car held after default of the judgment debtor in his payments thereon. The trial court found that even if the sale were held the levy had been made prior thereto. Appellant contends that this and other findings of the court are unsupported by the evidence.

At the hearing appellant produced witnesses who stated they were present at the sale and who testified as to the time and place of the sale and the manner in which it was conducted. Among these witnesses was the employee of appellant who had conducted the sale. Respondent, in his own behalf, testified that on the date the sale was to take place he went personally to the garage, where appellant’s witnesses stated the sale was held, and stationed himself just outside the door to the garage in a position where he had a clear view of the interior; that he saw no one enter or leave the garage and that he saw no such sale take place. The sale was noticed for 9 A. M. of the day in question. Appellant’s witnesses all testified that the sale was held at approximately that hour. Respondent’s testimony as to the time he arrived at the garage was somewhat equivocal and self-contradictory, and his assertions as to the care he took to keep his watch accurate were contradicted by another witness produced by appellant. However, his testimony was not inherently improbable and respondent’s credibility as a witness was for the determination of the trial court. The time of the levy was definitely established as about 9:20 or 9 :25 A. M. of the day in question. Respondent’s own testimony produced the only conflict as to the sale.

The court in finding as it did must have chosen to believe respondent’s testimony and relied thereon. Considered by the trial court as credible evidence, it cannot be said that respondent’s testimony failed to create a substantial and real conflict as to the time of the pledge sale of the car. (See the sections upon conflicting evidence, 2 Cal. Jur. 921, et seq., and 10 Cal. Jur. 1172, 1173.) The court having found upon conflicting evidence that the levy of execution was made before the pledge sale, such finding may not be disturbed upon appeal. The finding as to priority of the levy disposes of all