Ross v. Thomas

SHAW, J.

Action to recover damages for the alleged wrongful attachment of personal property.

Judgment went for plaintiffs, from which defendants, adopting the alternative method in bringing up the record, appeal.

The complaint alleges that at the time of the alleged wrongful acts defendant Thomas was constable of Los Angeles township and his codefendants were his official bondsmen; that W. H. and Sarah A. Stager were husband and wife; that on January 29, 1913, plaintiffs Ross and Sarah A. Stager were the owners of certain personal property situated at No. 253 South Main Street in the city of Los Angeles, consisting, among other things, of a printing press and outfit, a camera and outfit, and a cash register; that Ross was the owner of the title to the property and that Sarah A. Stager was in possession thereof under a certain written contract made between said Ross of the one part and Sarah A. Stager and W. H. Stager of the other part, whereby the former agreed to sell and the latter agreed to buy the property, including that herein specified, for the sum of six thousand five hundred dollars, of which amount Stager and his wife had paid the sum of three thousand two hundred and fifty dollars; that on January 22, 1913, W. H. Stager, in consideration of three hundred dollars, sold and transferred all his interest in the property to his wife, who is now the lawful owner thereof; that on January 29, 1913, defendant Thomas as constable, pursuant to a writ of attachment issued out of the justice’s court of Los Angeles township in a certain case wherein W. H. Stager was made defendant, levied upon, took possession of, and removed from 253 South Main Street the printing press, camera, and cash register; that Thomas refused to comply with a demand for its release from attachment; that the value of the property is the sum of four hundred and twenty-five dollars, in addition to which plaintiffs suffered loss to their business by reason of the taking and detention of same in the sum of one thousand dollars. The answer, among other

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things, denied the allegation as to ownership of the property; denied that Sarah A. Stager was the owner or holder of a contract for the purchase of the property from Ross, or that she was in possession of the property; denied the sale and transfer thereof as alleged to have been made to Sarah A. Stager by her husband; and as a separate defense, alleged that on January 15, 1913, W. H. Stager, who was then the owner of all the personal property located at 253 South Main Street, including that so levied upon, was indebted in the sum of one hundred and twenty-five dollars to the Los Angeles Gas & Electric Corporation, which demanded payment of said indebtedness, and upon refusal of said Stager to pay the same, instituted suit for the recovery thereof, and on January 29, 1913, procured the levy of an attachment upon the property as alleged in the complaint; that between the 15th and 29th of January W. H. Stager made a pretended sale and transfer of the property for the purpose of defrauding the attaching creditor; “that said property was at the time of said pretended sale and transfer, and continued thereafter, in the possession and under the control of the said W. IT. Stager at the time of said levy and attachment so made by” defendant Thomas, and that it never has been in the possession, control, or custody of Sarah A. Stager.