Moore v. Rogers

KNIGHT, J.

This is an appeal by plaintiff from a judgment in favor of defendants in an action for the alleged conversion of plaintiff’s automobile, the ground of appeal being that the trial court failed to find on a material issue raised by the pleadings.

The complaint alleged that the defendant Roach was the constable of the third judicial township of San Mateo County; that on February 15, 1926, pursuant to a writ of attachment duly issued out of the Justice’s Court in an action brought against plaintiff by the defendant Carli, Roach seized said automobile and retained possession thereof “until on or about the 20th day of September, 1926, when he converted said automobile to the use and benefit of himself and of said defendants John Rogers and Frank Carli, who' ever since said time and still continue to hold and retain said automobile as their own.” The complaint further alleged that plaintiff demanded the return of said automobile, but that such demand was refused, and that by reason of the alleged conversion he has suffered damage in the sum of $700.

[785]

The answer consisted of a general denial, verification being waived. The action was tried by the court sitting without a jury, and the judgment in favor of defendants was based upon the following findings: That prior to February 13, 1926, while plaintiff was the owner of said automobile, the defendants Rogers and Carli performed work thereon and furnished materials therefor; that on said date Carli sued plaintiff in the Justice’s Court of the third township “for the work, labor, and material rendered and performed in the repair of said automobile, and on or about the 13th day of February, 1926, the defendant Roach placed said automobile in the garage of Rice and Hinton for storage with the full knowledge of plaintiff’’; that the automobile remained there until August 30, 1926, at ■ which time Rice and Hinton caused it to be sold pursuant to sections 3051 and 3052 of the Civil Code for the storage due thereon. It was further found that plaintiff had full knowledge of all of the foregoing proceedings, but took no action in the matter until January, 1927, when he demanded the return of the automobile, and that thereafter and in April, 1927, he commenced this action for conversion. And in connection with such delay the court also found that plaintiff’s right to said automobile, if any he had, was lost by his laches.