Banning v. Marleau

HENSHAW, J.

The facts concerning this action and the law of the case will be found in the opinions of this court upon former appeals, reported in 101 Cal. 238, and 121 Cal. 240. This trial was without a jury. The value of the property was stipulated. The court found against the plaintiff, and gave judgment for defendant for the return of the property, or its value,—six hundred dollars. Plaintiff appeals.

The property had been seized under writs of attachment issued by the justice’s court in an action in which one Dr. Hannon was defendant. It was taken from the possession of Dr. Hannon while upon a ranch which was the property of the plaintiff. The plaintiff claimed title to the property, under a bill of sale from Dr. Hannon. Dr. Hannon’s testimony, which was accepted by the court, showed the sale was color-able merely, was not intended by the parties to be a transfer of the title, but was designed as a fraud against the creditors of Dr. Hannon, to save the property from attachments and execution levies which he feared. Hannon was at the time, according to his own testimony, overwhelmingly in debt. The findings are supported by the evidence.

The numerous technical points urged by- appellant have been given due consideration, but for the most part they do not merit discussion. It is contended, for example, that the judgment is not supported by the findings, because of the absence of a finding as to tHe right of possession at the time of the commencement of the action; and the cases of

Cooke

v.

[487]

Aguirre,

86 Cal. 479, and

Fredericks

v.

Tracy,

98 Cal. 658, are relied on. In those cases the plaintiff had recovery. The basis of plaintiff’s right of recovery was his right of possession at the time of the commencement of the action, and the cases were properly reversed, because of the absence of a finding as to the value of the property, and an absence of a finding as to the amount of plaintiff’s damage. What application they can have to this case, where the value is stipulated, where the findings of the court are wholly against the ownership of the plaintiff, and declare that at the time of the attachments levied by the constable, Hannon was the owner and in possession of the property, we fail to perceive, and upon it we are not enlightened.