Killey v. Scannell
Before: Terry
Synopsis
Appeal from the Fourth District, County of San Francisco.
This was an action to recover the possession or the value of certain personal property, comprising the furniture, fixtures and stock of the “ Empire State Saloon.”
The property was, on the nineteenth day of February, 1857, seized by the defendant as Sheriff of San Francisco county, under an attachment against one Wilson. Prior to the seizure of the property by the defendant, the plaintiff, by an instrument in writing, bargained and sold the property to Wilson, and, by the terms of the agreement, the property was to be delivered and paid for on the fourteenth day of February, 1857. On that day, Wilson paid a part of the purchase money, and the time for the payment of the balance was extended to the twenty-fourth of the same month. On the fourteenth of February, Wilson and one Kirk were in possession of the property, and appear to have been the proprietors of the saloon. This possession continued up to the time of the seizure of the property by the defendant as Sheriff.
The plaintiff’s complaint contains no allegation, nor was there any proof on his part, of notice of his claim or demand of the property, prior to the bringing of this action.
Plaintiff had judgment on the report of a referee, to whom the case had been referred. The judgment was afterwards vacated and a new trial granted,—the District Judge rendering the opinion which follows the opinion of the Court in this case. Plaintiff appealed to this Court from the order granting a new trial.
Terry, C. J., delivered the opinion of the Court—Baldwin, J., concurring.
The judgment is affirmed for the reasons given in the written opinion of the Judge of the Fourth District filed in the record.
The following is the opinion of the District Judge referred to in the foregoing opinion of this Court:
“ There is no allegation or proof on the part of the plaintiff that he either gave notice of his claim to, or demanded the property in question of, the defendant before the commencement of his action. Wilson being in the possession at the time of the levy, and having apparently the control of the property, was prima fade the owner. It was the official duty of the defendant as Sheriff to levy on all property found in the possession of Wilson as ostensible owner, and this property under the proof was prima fade liable to be attached. If it was in fact the property of the plaintiff or any other person, the real owner might have made his claim to it, and tried the question of title in a summary way, as authorized by our statute or by an action of this kind. X
“ Defendant having seized the property by virtue of his office and process, while in the possession of the party defendant mentioned in the writ, was entitled to notice and demand from plaintiff before he can be0held liable to an action for the possession or value. Neither is it necessary, as was contended in the argument, that in order to make this defense defendant should specially plead want of notice and demand. After the defendant proved the possession was in Wilson at [76]the time of the seizure, and justified under the process against him, the onus was on plaintiff to show affirmatively a proper demand and notice to enable him to recover.
“ Report set aside and new trial ordered.
“Hager, Judge.”
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