Kerschner v. Fisk Tire Etc. Co., Inc.

YORK, J.

This is an appeal from a judgment in favor of respondent in an action for malicious prosecution.

The facts out of which the action arose are as follows: On September 17, 1928, an action was filed in the Municipal Court of Los Angeles County by appellants Bruhnke & Silver against P. E. Kerschner, the husband of respondent Evelyn Kerschner. A writ of attachment was issued directed to Charles R. Thomas, marshal of said court, with instructions to attach a Studebaker automobile which was owned by and in the possession of said respondent Evelyn Kerschner. Immediately thereafter respondent filed with said Marshal Thomas her verified third-party claim setting up her title, ownership and right of possession to said automobile and demanding its release from attachment. Thereupon appellants Bruhnke & Silver filed an amended complaint making said respondent a defendant therein, and caused an

alias

writ of attachment to issue, pursuant to which Marshal Thomas reattached and took possession of the automobile. Respondent filed answer to complaint, and on or about November 7, 1928, the matter came to trial in the municipal court and judgment was rendered against appellants Bruhnke & Silver and in favor of respondent for her costs, which judgment was later satisfied, and at the same time a judgment was rendered in favor of appellants Bruhnke

&

Silver against P. E. Kerschner, respondent’s husband. On November 12, 1928, respondent demanded release of her automobile from Marshal Thomas and from appellants Bruhnke & Silver. The latter, on the twenty-first day of November, -1928, deposited with Marshal Thomas a surety bond, and by instructions in writing and an execution issued

[264]

on their judgment against P. E. Kerschner did instruct Marshal Thomas to levy on and sell the said automobile. In reliance upon these instructions and said execution, Marshal Thomas on December 12, 1928, sold respondent’s automobile to appellants Bruhnke & Silver, who in 'turn sold the same to the Fisk Tire Company, applying the proceeds of said sale under execution to the credit of the judgment held by them against P. E. Kerschner.