Missouri State Life Insurance v. Gillette

THE COURT.

A hearing was granted in this case after decision hy the District Court of Appeal, Fourth Appellate District, in order to give further consideration to the question of the liability of defendant Maryland Casualty Company. We are satisfied that the opinion of Mr.' Presiding Justice Barnard properly disposes of the other issues of this case, and we adopt the following portions of said opinion as part of the opinion of this court:

“The facts of this case are as follows: The plaintiff owned land in Imperial county and on October 8, 1927, leased the same to one Jack Kennedy for a term of three years, the lessor to receive as rental one-fourth of all the grain grown on the premises. On October 28, 1927, the plaintiff loaned to Kennedy the sum of $680 for the purpose of enabling him to farm the land and on that day Kennedy executed and delivered to the plaintiff his prom

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issory note for that amount, with interest, secured by a crop mortgage covering all grain grown on the land, which mortgage was in all respects properly executed and recorded. During the crop season of 1928 a crop of barley matured first and the plaintiff permitted Kennedy to sell the same in his own name and to retain all of the proceeds thereof except the sum of $157, which was paid to the plaintiff. When the wheat matured it was harvested and delivered to the plaintiff at Seeley, California, on May 12, 1928. On May 14, 1928, the defendant Gillette, as Sheriff of the County of Imperial, levied an execution upon this "wheat, the execution being issued in another action wherein another party had recovered a judgment against the said Jack Kennedy. The plaintiff filed with the sheriff a duly verified third party claim, setting forth its claim to the ownership and right of possession of the said wheat. An undertaking was then filed with the sheriff in accordance with section 689 of the Code of Civil Procedure. Following that and on May 23, 1928, the sheriff sold the wheat at public auction. This action was brought by the third party claimant against the sheriff, the Maryland Casualty Company, the surety on the sheriff’s official bond, and also against R. Y. Watson and Richard Brackenbury as sureties upon the undertaking filed in accordance with section 689 of the Code of Civil Procedure. After a trial judgment was entered in favor of the plaintiff for $1358.70 as against the defendant sheriff and the defendant Maryland Casualty Company, and it was further ordered that the plaintiff take nothing against the defendants Watson and Brackenbury. From this judgment both the sheriff and the surety on his official bond have appealed, both appeals being, by stipulation, submitted upon one transcript and one set of briefs.