Cocores v. Assimopoulos

PARKER, J.,

pro tem.

This is an appeal from an order of the trial court denying appellants’ motion to quash and set aside a writ of attachment theretofore issued in the action.

It will be unnecessary to specifically detail the facts to the extent of setting forth the character of the property involved or the amount or terms of payment. The concrete question may be presented by a more or less general statement. Plaintiff was the owner of certain personal property, consisting of fixtures and furnishings for a candy store. Defendants entered into a contract with plaintiff whereby plaintiff agreed to sell to defendants the said property. The contract was of the usual conditional sales form, providing therein the purchase price and terms of sale. The payments were to be made extending over a period of some years, a certain amount payable on the first of each and every month. The unpaid purchase price was to bear interest at the rate of seven per cent per annum, and possession of the property was delivered to the defend

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ants, the vendees. The contract provided that the title to the property should remain in the vendor until the full purchase price and the interest thereon had been fully paid, and further provided that should the vendees fail, neglect or refuse to pay any installment of the purchase price or any interest at the time when due, the vendor at his option might terminate the agreement and might retake the said property. Default was made in the payments and the present action commenced.

In the complaint it is alleged that plaintiff, vendor, has elected to terminate the agreement and to take possession of said property. The complaint sets up the contract, and default, and also alleges that defendants claim some right, title, estate or interest in said property. The prayer is that plaintiff be decreed the owner of the property and entitled to the immediate possession, and that immediate possession be awarded plaintiff.. The complaint further prays for damages for the wrongful withholding. Then plaintiff prays for a judgment for the sum of $967.35, as interest due and unpaid under the agreement. A writ of replevin was issued upon the affidavit of plaintiff, and due and sufficient undertaking was filed. The affidavit supporting the writ sets forth that plaintiff is the owner of the property which is being wrongfully detained by defendants. Thereafter plaintiff, upon affidavit and undertaking, procured in the same action a writ of attachment directed against defendants. The affidavit, in the usual form, set up the claim that defendants were indebted to plaintiff in the sum and amount of $975 upon an express contract for the direct payment of money, to wit: Interest on conditional contract of sale payable in this state and not secured by mortgage or lien or pledge, etc. After the issuance of the said writ of attachment, defendants moved the court below to set aside and quash the said writ, which motion, coming on regularly to be heard, was denied. We are of the opinion that the order thus made was erroneous.