Rodley v. Lyons

HAYNES, C.

Plaintiffs brought this action in the superior court upon a promissory note executed to them by the defendant, and caused a writ of attachment to be issued and levied upon certain personal property of the defendant. A motion to dissolve the attachment was made by the defendant, and was denied by the court on June 24, 1899, on which day an order was made setting the cause for trial on June 26th and on the day last named, in the absence of defendant, a- trial was had and the plaintiffs obtained judgment. A motion for a new trial was made and denied, and defendant appeals: 1. From the order refusing to dissolve the attachment; 2. From the order

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setting the case for trial; 3. From an order denying his motion for a new trial; and 4. From the judgment.

The defendant in said action was engaged in the business of a harness maker and selling harnesses, saddles, whips, etc., in Chico, and his stock was supposed to be of the value of about one thousand dollars. On the evening of March 24, 1899, his goods were attached by a creditor, the amount due, including costs and sheriff’s fees, being four hundred and twenty-seven dollars. Defendant, desiring to pay the demand and have his property released, applied to the plaintiffs for a loan of said amount, and offered to execute a bill of sale upon his said property to secure them. They thereupon went to an attorney’s office to have the papers prepared. A promissory note for said sum, due one day after date, payable to the plaintiffs, and a bill of sale of the stock of goods, were prepared, and signed by the defendant, and plaintiffs each drew a check for one-half of said sum. The checks were delivered to the sheriff, who thereupon released the attachment.

On April 17th another creditor of defendant Lyons levied an attachment upon the same stock of goods upon a demand for the sum of one hundred and fifty dollars, and thereupon plaintiffs brought this action and procured an attachment to issue and to be levied on the same goods, subject to the prior attachment. Plaintiffs’ affidavit upon which the writ of attachment was based stated, after setting out the indebtedness, “that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property.” This statement defendant contends was not true; that the plaintiffs had security by a pledge of the personal property effected by the bill of sale and possession taken thereunder.