Loosemore v. Baker

HENSHAW, J.

This appeal is from the judgment and from the order denying plaintiff’s motion for a new trial. He sued defendant as sheriff of the county of Kern, who, under a writ of attachment, had levied upon and taken possession of certain personal property. Plaintiff offered to prove that the property was in his possession at the time of the sheriff’s levy and that his possession was based upon a chattel mortgage for a

bona fide

debt due to him from one Wygal, who had made default in the matter of the payment of the debt. After seizure by the sheriff plaintiff had given him an undertaking and thus had regained possession of the property. The judgment was in favor of the sheriff for the return of the property or its value, found to be the sum of three thousand dollars.

It was shown by respondent, and it is not controverted, that the chattel mortgage was never recorded and that it was not accompanied by the affidavits of the parties thereto as required by law. One C. B. Alexander commenced his action against Wygal to recover the sum of $1,450, for hay sold by him to Wygal within two years next preceding the commencement of the action, which commencement was on the thirteenth day of October, 1911. The chattel mortgage bore date of the 23d of May, 1910. In this action the attachment was issued. Plaintiff in the present action admitted, however, that he was unable to prove that any part of this hay was so sold before the execution of the mortgage, the contrary being contended for by defendant, and that he was unable to prove that Alexander had any notice or knowledge

[422]

of the existence of this mortgage until after the hay had been so sold and delivered.

The judgment giving priority to the lien of the attachment under these facts comes strictly within the decisions of this court in

Ruggles

v.

Cannedy,

127 Cal. 291, [46 L. R. A. 371, 53 Pac. 911, 59 Pac. 827], and

Alferitz