Edgerton v. Scammon

TUTTLE, J.,

pro tem.

This is an action to recover upon judgments rendered in the justice court and to subject certain personal property to sale under executions levied pursuant to said judgments.

The complaint contains two counts. The first alleges the rendition of judgment in the justice court in favor of the assignor of plaintiff and against Modoc Moulding and Lumber Company; that this judgment was entered April 18, 1929, and was for the sum of $273.55; that execution on the judgment was levied upon certain personal property alleged to belong to the lumber company; that E. G. Scammon, defendant herein, filed a third party claim, and that the property was delivered to him upon the filing of a bond; that Scammon claims to be the owner thereof; that at all times mentioned the lumber company was in possession of said personal property, claiming to own the same; that defendants Gibson and Laird are sureties upon the said bond. The second count, based upon another judgment, is practically the same as the first, except that the judgment was obtained on July 25, 1927, and the amount was $272.15.

The answer denied the possession of the lumber company, and its title to said property, and in this behalf alleges that defendant Scammon became the owner thereof, under a bill of sale, on April 27, 1927, and that he took immediate possession thereof, and was in possession of said property at the time of the levy of the executions under said judgments.

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The court found for plaintiff upon all the issues, and entered judgment accordingly. Defendant now appeals from the judgment.

In the fall of 1925, Scammon, Lopstead and Payne organized the" Modoc Moulding and Lumber Company, a corporation, which equipped and ran a mill in Modoc County. In 1926, Payne bought the stock of the other two, leaving him the owner of ninety-eight per cent of the corporate stock. Payne continued to supervise operations, being upon the ground at all times, and in possession of all equipment. Upon April 27, 1927, Payne executed a bill of sale in favor of defendant Scammon, covering all machinery and equipment of every character belonging to the lumber company. Scammon did not take possession of the property, and Payne continued in sole possession thereof, for a period of three months after the sale. Payne testified that he had a verbal agreement to buy it back. At the expiration of the three months, Payne left the premises, and Campbell, Archer and Davis leased the mill from Scammon, and operated the property until the spring of 1928, when Payne again took possession, under what he stated was a verbal agreement with Scammon. Payne finally gave up possession upon April 12, 1929.