Arena v. Bank of Italy

PULLEN, J.,

pro tem.

Upon the original trial of this case in the superior court judgment was rendered for defendant. Thereupon an appeal was prosecuted by the plaintiff herein to the supreme court (reported in 194 Cal. 195 [228 Pac. 441]), and the judgment of the trial court was reversed, with direction to enter judgment for plaintiff. A petition for rehearing was denied, but the court directed that inasmuch as the Bank of Italy had been a coactor with its co-defendant, the sheriff, in procuring an unlawful release of attachment of the property in question and the delivery thereof to itself, the bank was liable for whatever damages plaintiff had sustained by reason of the conversion of the property.

Thereupon the trial court entered judgment for plaintiff in accordance with the directions of the supreme court and also gave its judgment for the amount of damages sustained by plaintiff by reason of the conversion mentioned. The facts in issue are fully set forth in the opinion of the supreme court written by Mr. Justice Richards and need not be repeated.

Appellants rely upon three grounds for reversal: 1. Insufficiency of the' evidence to support the findings; 2. Excessive amount of the judgment; 3. Error of the trial court in denying defendants’ motion for a new trial.

It may be conceded for the purposes of this opinion that, inasmuch as on the former appeal the present appellants were respondents, they as such respondents were unable to attack the findings of fact for insufficiency of the evidence and, therefore, may in this appeal bring that issue before this court for review.

(Lambert

v.

Bates,

148 Cal. 146 [82 Pac. 767]; 2 Cal. Jur., p. 839, sec. 492.) Appellants contend that the evidence is insufficient in the following particulars: 1. As to the ownership of the goods; 2. As to Dellaira’s pledge to

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the bank; 3. As to the failure of the sheriff to demand indemnity from the plaintiff upon the filing of the amended third-party claim. As to the insufficiency of the evidence to support the finding that Dellaira at the time of the levy of the attachment “was the owner and in the exclusive possession, custody and control of said merchandise,” the testimony upon that subject is, quoting from the record: “Mr. Ferrari: If you will admit that the transaction as set forth in the amended claim is true, that is all that we desire to prove; in other words, the warehouse receipt, the date, the time we acquired title, and those matters; I am willing to submit the matter. Mr. Dessouslavy; You claim, I understand, that this property had been pledged to you to secure a debt. Mr. Ferrari: It was assigned to us. Mr. Dessouslavy: Assigned or pledged. Practically, that -the property had been either assigned or pledged to you to secure a debt, and the property was warehoused, and you got the warehouse receipts as collateral, and on the 2nd or 4th of June, 1919, the warehouse receipts or the property itself came into Dellaira’s possession and he had it in his place of business on Front Street. That is what you are seeking to prove? Mr. Ferrari: That in brief is what I am seeking to prove. Mr. Dessouslavy: We will admit that.” The foregoing embraces the stipulation of counsel and those facts under the reasoning and authorities cited by Mr. Justice Richards in the opinion rendered by the court in the case of