Gustafson v. Byers

OWEN, J.,

pro

tem.

On the thirteenth day of May, 1926, the defendant, as sheriff of San Diego County, attached a Buick automobile as the property of one Lillian L. Elphick. On the fifteenth day of May, 1926, the plaintiff herein filed with the defendant a third party claim, alleging his ownership of the attached property. On the 2'6th of the month judgment was entered against Lillian L. Elphick, and an execution on the judgment was duly issued on the 29th of said month. Pursuant to the execution, and after due and legal notice, the sheriff sold the said automobile on the eighth day of June, 1926, and immediately parted with its custody.

. On July 1,1926, the plaintiff instituted this action against the defendant, said sheriff, for the sum of #850, the alleged value of the automobile, and the sum of #500 for the loss of its use.

After denying the allegation of the complaint, the defendant as a further defense alleges that Lillian L. Elphick had transferred the said automobile to the plaintiff herein, without any consideration; that the transfer was without immediate delivery, and was not accompanied by an actual or continued change of possession, and that the attempted sale was fraudulent as to creditors.

[586]

The court found that on April 17, 1926, while she was the owner and in possession and control of the automobile, Lillian L. Elphick had sold it to the plaintiff for a valuable consideration; that after the sale and delivery thereof there was an actual and continued change of possession, and that plaintiff thereupon, became the lawful owner. The court further found that the defendant seized the automobile without right or authority of law, and that the allegations of his answer were untrue. Judgment followed for the plaintiff in the sum of $1350.

On appeal the defendant urges his demurrer to the complaint, attacks the court’s findings as to the immediate delivery to plaintiff from Elphick of the automobile, and its actual and continued change of possession. He also excepts to the award for loss of use, and raises the question of the correct measure of damage.

(1) The court’s finding that there was a valuable consideration for the sale, followed by an immediate and actual delivery, and accompanied by a continued and actual change of possession, is substantially borne out by a reading of the transcript. We will not disturb that finding. (2 Cal. Jur., p. 919;