Alper v. Tormey

CHIPMAN, P. J.

Action to recover from defendant Tormey the possession or the value of certain sixty tons of steel

[397]

rails. L. C. Wittenmyer, as assignee of the Union Stockyard Company, an insolvent debtor, filed a complaint in intervention, claiming that the property belonged to said insolvent debtor. Defendant Tormey answered the plaintiff’s complaint, claiming that said rails were delivered to him as bailee by one A. S. Garretson for safekeeping and that he, defendant, has a lien on the rails as security for services in “safely and securely keeping the said steel rails,” which services he alleged to be of the value of $1,500. He further alleged that one E. J. Randall is the owner of the rails as successor to said Garretson. Plaintiffs answered the complaint in intervention denying the ownership and right of possession of the stockyard company, and alleged that prior to the commencement of the action said company sold and transferred to plaintiffs the said rails and that plaintiffs are now the owners thereof and entitled to possession. Defendant Tormey also answered the complaint in intervention specifically denying its allegations and averring a lien as set forth in his answer to the plaintiffs’ complaint. Judgment passed for the intervener and this appeal is by defendant, Tormey, from the judgment and from the order denying his motion for a new trial. The cause was here on the appeal of plaintiffs, and as to them the judgment was affirmed.

(Alper

v.

Tormey,

1 Cal. App. 634, [82 Pac. 1063].)

The only question now here is whether the evidence was sufficient to support the findings that the Union Stockyard Company is the owner of the rails as alleged in its complaint and that defendant Tormey agreed to store them without compensation. In his brief appellant does not claim ownership in Randall, and we shall assume that the allegation of such ownership, alleged in his answer, is waived. He now claims that the evidence fails to show ownership in the Union Stockyard Company, and that if ownership in anybody is shown, it is in Garretson, which, if true, defeats the action. It appears from the testimony of appellant Tormey that a quantity of steel rails, among them the rails in question, was, in the year 1890, deposited on his land, near the property of the company, by Garretson; that Garretson was a stockholder in the company, as was appellant, who was also president of the