Martin v. Feigenberg

CURTIS, J.

Action brought to recover possession of certain personal property of the alleged value of $1,250, and for $10,000 damages for the unlawful detention thereof. Plaintiff claimed to have been in possession of said personal property by virtue of a lease from C. H. Coddington, the owner thereof, and that defendants, on the fifteenth day of June, 1925, without plaintiff’s consent and wrongfully, entered upon the premises on which said personal property was situated and removed the same therefrom. The defendant Bercovich asserted title to said personal property through an execution sale thereof in an action wherein E. Sorenson was plaintiff and the said C. H. Coddington was defendant; that at said sale, held on June 15, 1925, the defendants Feigenberg Bros, became the purchasers of said personal property and immediately thereafter sold the same to defendant Bercovich. The court rendered judgment for defendants and plaintiff has appealed.

The writ of execution under which said property was sold is the same writ which was the subject of consideration by the district court of appeal, first district, first division, in the case of

Sorenson

v.

Coddington,

79 Cal. App. 199 [249 Pac. 37]. From the facts stated in the opinion therein it appears that the appellant herein, although not a party to said action of

Sorenson

v.

Coddington,

after the rendition of the adverse judgment from which the present appeal was taken, made a motion in the superior court of Alameda County, where said action of

Sorenson

v.

Coddington

was pending, to set aside said writ, which motion was denied. Thereafter the defendant Coddington made a similar motion, which was also denied. However, after the denial of said motions, by an agreement between Sorenson, Coddington, Feigenberg Bros, and Bercovich and their attorneys, said writ of execution was annulled and said personal property, or a large portion of it, was returned to Martin, the appellant herein. It does not appear, however, from the report of said action that Martin was a party to said agreement. It does appear, however, that he appealed