Zuanich v. Petrich

ARCHBALD, J.

pro tem.

Clara Zuanich filed her complaint in claim and delivery against Paul Petrich and the Bank of Italy for the recovery of certain personal property. Thereafter respondent Noyes filed his complaint in intervention, alleging the bankruptcy of Petrich and the former’s appointment as trustee of the estate of said bankrupt, that as such trustee he was the owner and entitled to the possession of the personal property mentioned in the complaint in claim and delivery and that appellant Bank of Italy took possession of said property wrongfully and unlawfully, under and by virtue of a chattel mortgage alleged to have been executed by said bankrupt but which

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was void as against said trustee. The trial court found, among other things, that while the bankrupt had executed and delivered a bill of sale to plaintiff covering the personal property, the same was not accompanied “by any delivery whatever, or followed by any actual or continued change of possession of said articles of personal property”. With regard to the chattel mortgage executed and delivered to the bank by Petrieh, the court found that it was not acknowledged by Petrieh, and that “within four months from the filing of the petition and adjudication of said Paul Petrieh” said Bank of Italy “wrongfully took possession of said articles of personal property under the said purported chattel mortgage, and ever since has retained and now has possession of the same”; that no notice of the execution or delivery of said purported chattel mortgage was ever given to or had by the creditors of said Petrieh or any of them prior to the time possession of said articles was so taken by the bank, and that said chattel mortgage was given “for a past consideration to prefer said defendant, the Bank of Italy, a corporation, to all other creditors of said Paul Petrieh”. As conclusions of law therefrom the court found that the plaintiff’s bill of sale was void as to the trustee in bankruptcy above mentioned; that the chattel mortgage was also void as to creditors under section 2957 of the Civil Code “and was and is also void as to said creditors and said trustee representing them; as a voidable preference under the laws of the United States relative to bankruptcy”, and that the said intervener, as such trustee, “is the owner and entitled to the return of said articles of personal property” or to the value thereof in the sum of $1,000. Prom the judgment entered on said findings the defendant Bank of Italy appeals.