Asato v. Emirzian

VICTOR E. SHAW, J.,

pro tem.

This action for conversion grew out of the following facts: On June 8, 1909, the parties entered into a contract whereby for a specified consideration plaintiff, Asato, agreed to grow and deliver to defendant Emirzian four thousand orange trees, delivery

[495]

thereof to be made in June, 1911. For some reason not material to the issues in this case, the trees were not delivered, and Emirzian instituted suit for the specific performance of the contract, the result of which was a decree entered in his favor on March 28, 1912. After an appeal from this judgment by Asato without giving an undertaking to stay execution thereon, the court upon application of Emirzian appointed a receiver, who, in accordance with the terms of the decree and under order of the court, made delivery of the trees to Emirzian, who planted the same on his land as a part of his orange orchard, where, prior to the commencement of this action, they died.

The appeal so taken by Asato from the judgment in the former action resulted in a reversal of the judgment.

(Emirzian

v.

Asato,

23 Cal. App. 251, [137 Pac. 1072].) Thereupon, plaintiff brought this action alleging that on May 13, 1912, he was the owner, entitled to, and in the exclusive possession of two thousand six hundred orange trees then and there of the value of two thousand six hundred dollars, which trees defendant unlawfully took and carried away and converted to his own use, all of which allegations were denied by defendant’s answer. The case was tried by a jury which rendered a verdict as prayed for by plaintiff in accordance with which judgment was entered. Defendant appeals from an order of the court denying his motion for a new trial.

In .effect, the several provisions of the Code of Civil Procedure declare that where no undertaking on appeal is given by defendant in cases of this character to stay execution of the judgment, the same may be enforced as though no appeal were had. Hence, the taking of the trees by defendant in this action under the terms of the decree as to the execution of which there was no stay, could not be deemed an unlawful or wrongful taking. “A judgment, although it may be erroneous, nevertheless, is the act of the court, and until reversed, unless superseded, which was not done in the instant case, constitutes a sufficient justification for all acts done in its enforcement, and afforded complete protection for the defendant who acted in reliance upon the adjudication.”