Billings v. Finn

KERRIGAN, J.

This is an application for a writ of mandate directing the respondent, Thomas Finn, as sheriff, to sell certain property in accordance with the instructions of petitioners.

The facts upon which the petition is based may be briefly summarized as follows: The petitioners herein in 1916 commenced an action against John Fauser and John Doe, alleging such persons to be “copartners doing business under the firm name of John Fauser & Co.” The action was brought upon a bond' executed in the name of John Fauser

&

Co. Judgment was rendered against “John Fauser and John Doe, copartners doing business under the firm name and style of John Fauser & Co.”“for the sum of $1,056.77. Subsequently the plaintiffs caused execution to issue thereon, and the sheriff accordingly levied upon certain personal property consisting of machinery and stock fixtures located in a building upon Guerrero Street which it is claimed belonged, to John Fauser

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Co. Thereafter and before a sale could be had one Annie Fauser filed with the sheriff a third party claim to the property. Plaintiffs bonded against such claim and demanded that the sheriff proceed with the sale. Thereupon Annie Fauser delivered to the sheriff an undertaking pursuant to the provisions of section 710a of the Code of Civil Procedure, and the sheriff then refused to act further in carrying out a sale.

It appears from the record that one John Fauser, owned the business conducted under the name of John Fauser

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Co. He died, and Annie Fauser acquired the business, and filed in the office of the county clerk the certificate provided for by sections 2466-2472 of the Civil Code, to the effect that she was conducting said business under the name of John Fauser

& Co.

Notwithstanding this notice plaintiffs in the action above referred to, in attempting to proceed against John Fauser & Co., alleged the same to be a copartnership, and sued John Fauser and John Doe as co-partners doing business under such copartnership name, and service of summons was had upon John Fauser, a brother of Annie Fauser, who, it appears from the record, had no

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