Lundblade v. Pierce

THOMPSON (R. L.), J.,

pro tem.

This is an appeal from a judgment in favor of plaintiff in an action to replevin an automobile. While the car was in the possession of Edward Lovell, the registered owner thereof, under an executory contract of purchase from the respondent, the machine was left at the garage of Clarence Norton in Eureka for repairs. While the machine was in this garage for repairs the respondent commenced an action against Norton for a debt of $121 alleged to have been due upon an entirely different transaction and attempted to attach Norton’s claim against Lovell for the repairs upon the automobile involved in this action. October 1, 1925, the officer visited the garage and apparently attempted to attach and take possession of the Lovell car. The repairs upon the ear were not completed, and the machine could not be removed, for it could not be operated on its own power. The officer therefore left the garage and, returning the following morning, found that Norton had sold the car to the appellant Pierce under section 3052 of the Civil Code to satisfy his mechanic’s lien for $98 for services performed. The respondent paid this amount to the sheriff and proceeded to attach it in his action against Norton. Pierce resold the Lovell car to the appellant Peterson. Lovell was in default of payments on his contract to purchase the car. November 10, 1925, this action in replevin was commenced, and the sheriff thereupon took and still holds possession of the car pursuant to the writ of replevin issued therein.

The trial court found that the respondent was the owner and entitled to the possession of the car; that it was illegally withheld from respondent’s possession to his damage in the sum of $100; that the market value of the machine at the time of the illegal taking thereof was the sum of $432.50. Judgment was thereupon rendered in favor of respondent for the recovery of the possession of the machine and $100 damages, and for the further sum of $432.50 in the event of failure to recover possession of the car.

The appellants contend that they held legal title to the machine by virtue of the sale thereof by Norton to satisfy

[194]

his mechanic’s lien for services performed in repairing the