Mamlock v. White

California Supreme Court Jul 1, 1862Published

Before: Cope, Field, Norton

AI Brief

AI-generated · verify before citing

Holding. The court held that the defendant's failure to prove the underlying attachment debts and procedural requirements could not be raised for the first time on appeal, and that evidence of a non-party's acts and declarations was admissible upon proof of his participation in the alleged fraud.

Issues

Whether the defendant's failure to prove the validity of attachment proceedings can be raised for the first time on appeal.
Whether the acts and declarations of a non-party were admissible as evidence of fraud.
Whether the trial court's instructions to the jury were erroneous.

Disposition. affirmed

Quotations verified verbatim against the opinion

“After the question as to the validity of this sale had been thus put in issue and tried on its merits, without any objection of this kind being raised, we think it too late to raise it for the first time on the argument of the appeal”

“This testimony was admissible if he was a party to the fraud charged, and if this connection was established by the admissions, or conduct equivalent to the admissions, of the plaintiff.”

Synopsis

In an action against a Sheriff for taking goods from the possession of the plaintiff, where the defendant justifies under a writ of attachment against a third person, and alleges a fraudulent sale from such third person to the plaintiff, proof of the

, debt on which the writ of attachment was based is necessary for no other purpose than as the foundation for proof that the sale was void as to creditors. Where in such action the fraudulent character of the sale was put in issue by the pleadings, and full proofs regarding that question were introduced on the trial without any objection from plaintiff that the debts on which the writ of attachment rested had not been proved, and no instruction was asked concerning the point, nor the attention of the Court below in any manner called to it: Held, that plaintiff could not avail himself of the absence of proof of the attachment debt by objection raised for the first time in the Appellate Court.

Where the defense to an action rests upon the fact of fraud in a sale of property to the plaintiff, the declarations of a person not a party to the action are admissible in favor of defendant, if such person was a party to the purchase alleged to be fraudulent, and his connection with the purchase may be established by the admissions, or conduct equivalent to admissions, of the plaintiff.

The rules of law in regard to the right of a failing debtor to give a preference to some of his creditors, have no application to a sale for cash to a person not a creditor, although the proceeds may have been applied to pay creditors.

Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring. This is an action to recover specific personal property which the plaintiff claims to have purchased of one A. B. Ephraim. The defendant claims title to the property by virtue of a seizure as Sheriff, under certain attachments issued against said Ephraim and another, and justifies the seizure by averring that the transfer by Ephraim to the plaintiff was made for the purpose of defrauding [600]the creditors of Ephraim, and therefore void. The judgment was for the defendant, from which the plaintiff appeals.

I. It is objected that the defendant failed to establish his justification in not proving the debts for which the attachments issued, and also in not proving the bond and affidavit required upon issuing an attachment.

The defendant in his answer alleged that the attachments were duly and regularly issued, and this allegation was not denied in the replication. Proof of the debt would not be necessary in order to justify the Sheriff in seizing the property, if in the possession of Ephraim, the attachment debtor, and was only necessary in this case in order to enable the defendant to place himself in a position to attack the sale to the plaintiff as being void against creditors. A direct issue was made by the pleadings as to the good faith of this sale; and on the trial, proofs upon this issue were introduced by both parties. Ho objection was made by the plaintiff to the introduction of this proof on the part of the defendant, on the ground that the proper foundation had not been laid, neither in general terms, nor by any specific objection that the bond and affidavit had not been proved, nor that the attachment debts had not been proved; nor was any specific exception taken on these grounds to any ruling or charge of the Court; nor was the Court requested to give any ruling or charge upon the subject; nor is this matter specified as a ground of error in the statement on appeal. After the question as to the validity of this sale had been thus put in issue and tried on its merits, without any objection of this kind being raised, we think it too late to raise it for the first time on the argument of the appeal in this Court.

II. It is objected that the declarations and acts of S. Mamlock were improperly allowed to be given in evidence, he not being a party to the action. This testimony was admissible if he was a party to the fraud charged, and if this connection was established by the admissions, or conduct equivalent to the admissions, of the plaintiff. The evidence bearing upon this point consists principally of proof that S. Mamlock was a general partner of the plaintiff, and particularly in this purchase. The business was done in the name of the plaintiff, and one witness testifies that “ they ” told

Mamlock v. White

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief