Rhoades v. Lyons

CONREY, P. J.

This is an action to recover possession of an automobile. Defendants appeal from the judgment. The record was prepared under the provisions of sections 953a and 953c of the Code of Civil Procedure. Accordingly we shall assume that counsel have inserted in their printed briefs all those portions of the record which they desire that we shall consider.

The plaintiff, Minnie Rhoades, is the wife of W. M. Rhoades. Defendant Lyons is a constable of Los Angeles Township, in Los Angeles County. On the eighth day of June, 1914, an action was pending in the justices’ court of Los Angeles Township by Fletcher Collection Agency, plaintiff, to recover from W. M. Rhoades money claimed to be due on a contract. In that action and on that day, and pursuant to a writ of

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attachment against the property of W. M. Rhoades, the automobile now claimed by the plaintiff, Minnie Rhoades, was seized by Lyons" as constable and was by him taken from her possession. On July 8, 1914, Mrs. Rhoades commenced this action, which was tried on May 18, 1915. Thereafter the court entered judgment awarding possession of the automobile to Mrs. Rhoades; with the usual, form of alternative judgment for the value of the property in ease delivery thereof could not be had.

As applied to the rights of the parties on July 8, 1914, the evidence is sufficient to support the court’s finding that Mrs. Rhoades was entitled to the possession of the automobile. On June 8, 1914, when the property was taken by the constable, it was in her rightful possession under a contract of conditional sale made to her by one R. 0. Haskett. All payments on that contract had been made by Mrs. Rhoades out of her own separate property and she had made the contract as a separate property transaction. Her husband, W. M. Rhoades, had no interest in the automobile, and it was not community property. It follows that it was not subject to attachment in the action against W. M. Rhoades, and it was wrongfully taken from the possession of Mrs. Rhoades.

On July 8, 1914, the rights of Mrs. Rhoades under her contract had not been impaired in any degree. To understand the situation it is necessary to mention some other facts. The Haskett-Rhoades contract provided for payment of the consideration in monthly installments, beginning on March 4, 1914, the date of the contract, and ending with the final payment due on December 4, 1914. The deferred payments were evidenced by promissory notes. Under date June 12, 1914, for a valuable consideration, Haskett executed a bill of sale purporting to transfer the automobile . to one Herbert T. Brown. Nothing was stated therein concerning the Rhoades contract, but BroWn knew the terms thereof and that the notes had been given. The contract seems to have been delivered by Haskett to Brown, for Brown had it in his possession the next day, but it does not appear that the notes were delivered to him. On June 13, 1914, for a valuable consideration, Brown executed to Fletcher Collection Agency a written assignment of the bill of sale and also a written assignment of the contract, and delivered therewith both of said assigned documents.