Perkins v. Thornburgh

Burnett, J., delivered the opinion of the Court Terry, C. J., concurring.

This was an action to recover the value of certain personal property, seized and sold by the defendant, as sheriff, under an attachment and execution against one Carter. The plaintiff claimed the property before the sale; a trial was had before a sheriff’s jury, who found against Perkins; afterwards, the defendant sold the property and paid over the proceeds to the attaehing-creditor. In the Court below, the plaintiff had judgment, and the defendant appealed.

1. The first point made by the defendant is, that the District Court erred in permitting the plaintiff, against the objection of defendant’s counsel, to read a part of a sentence from the answer of defendant. The defendant, in his answer, sets up three separate defences : first, a simple denial of the allegations of the complaint; second, property in Carter, and levy under the attachment; third, trial before a sheriff’s jury, and verdict against the claimant.

The portion read from defendant’s answer was only so much as admitted the taking' of the goods by the defendant, as the property of Carter, without reading the other portion of the same sentence, which alleged that they were the property of Carter. It was clear that the reading in evidence of that portion of the answer which set up new affirmative matter, completely overthrew some of the denials contained in the first defence set up. This point clearly involves the question whether, under the Code, a defendant can set up inconsistent defences; and if he can not, whether the plaintiff who fails to make the proper motion, can afterwards treat them as inconsistent, and use the admissions in one portion of the answer to overcome the denials in another. But it is unnecessary to decide these questions, as the fact of the taking was afterwards proven by the witness of defendant in his examination-in-chief. Conceding that the nonsuit was improperly refused at the time, the defend[191]ant, by his own testimony, cured this error. (Smith v. Compton, 6 Cal. Rep., 24.)

2. The second and most material point made by appellant is, that the Court refused the evidence offered by defendant, to prove that plaintiff claimed the property before a sheriff’s jury, and that the verdict was against him. It is insisted that this is a complete justification of the officer, in afterwards selling the goods before any suit was brought by the plaintiff.