Burrell v. Collins

BURNETT, J.

The action was brought to recover the value of a certain number of cattle alleged to have been the property of plaintiff and converted by defendant.

The cattle were taken by defendant, as sheriff of Fresno county, under a writ of attachment issued out of the superior court of said county in the case of W.

R. Smith et al.

v.

E. J. Burrell,

and they were afterward sold as the property of said E. J. Burrell under a writ of execution against the defendant in said cause.

[289]

Two issues are presented by the pleadings, to wit, the ownership of the property and the conversion of the same by defendant. "The latter contends that the cattle belonged to E. J. Burrell and were legally sold under said writ of execution, while plaintiff insists not only that he is the owner of the property, but also that the record shows an irregularity in the sale, as no proof was made of the judgment upon which the execution was issued. But it is clear that the only controversy of importance here is as to the ownership of the property, because if it belonged to plaintiff the admitted taking by defendant was a conversion, and if plaintiff was not the owner; it is no concern of his whether the property was regularly or irregularly taken.

There is sufficient evidence disclosed by the record to justify the finding that the property belonged to said E. J. Burrell, but we cannot avoid the conclusion that the trial court committed prejudicial error in its ruling in relation to certain offered evidence directed to the issue of ownership. The said E. J. Burrell was called by plaintiff as a witness in rebuttal, and after stating that he was the party defendant in the suit of

Smith

v.

Burrell,

and that certain cattle were sold under an execution issued against him, he was asked this question: “Were the cattle levied upon by the execution and sold at the sheriff’s sale, in the suit of