Bloomquist v. Haley

[259]

CURTIS, J.

A hearing was granted by this court after decision by the district court of appeal in and for the second appellate district, second division, reversing the judgment in favor of respondents, and directing the entry of the following order: “It is directed that the order of the trial court granting a new trial be vacated, that said court enter a new judgment for the plaintiffs that they have possession of all of the furniture, fixtures and furnishings described in the complaint, and in the event that said property cannot be restored to plaintiffs upon the return of the writ of the sheriff so stating, then that plaintiffs have judgment against the defendants in the sum of $8,999.80, with interest from September 20, 1926, at the rate of seven per cent per annum, the amount due and unpaid upon the note and chattel mortgage covering said property, and interest, and for their costs.” We are in accord with the action of the district court of appeal in reversing said judgment, but are of the opinion that said appellate court was without power or authority to make the order directing a judgment in favor of, respondents as set forth above. The following portion of the opinion of said district court of appeal, written by Mr. Justice Craig, correctly expresses our views upon the questions therein considered, and we adopt the same as the opinion of this court:

“This appeal is from a judgment against the appellants giving the respondents possession of certain personal property, which is the subject of the suit, and damages for the value of said property. The action is one in claim and delivery, in the usual form. It is a companion case to

Haley

v.

Bloomquist,

No. 5519 (Cal. App.), 260 Pac. 569, and

Bloomquist

v.

Haley,

No. 5518 (Cal. App.), 260 Pac. 571. The opinion in the first of the two companion cases just named relates the principal facts referred to in the instant appeal.

“It appears that by the terms of the chattel mortgage mentioned in that opinion, on the first day of May, 1926, there became due the sum of $500. The defendants and appellants as assignees of the personal property were obligated to make this payment, but refused to do so. The chattel mortgage expressly provides that if the mortgagor shall fail to make any payment agreed to be made the mortgagees have the right to take possession of the mortgaged