Quiriaque v. Dennis

By the Court, Currey, J. The plaintiff commenced his action against the defendant to recover the value of a quantity of beans and corn, alleged to be of the value of one thousand dollars, which the defendant, as Sheriff, seized and carried away, under and'by virtue of a writ of attachment issued out of the District Court of " the Second Judicial District, for Santa Barbara County, in an action therein of Abidie & Brothers against one Zuniga.

The plaintiff’s right to the property was acquired by a mortgage of it, executed by Zuniga to him on the 8th of November, 1862, to secure the payment of six hundred dollars, which the mortgagor owed to the mortgagee. The mortgage was filed for record in the Recorder’s office of the county early in the day of the 19th of said month. The property was described therein as being at the farm cultivated by the mortgagor at a particular place named. Immediately after the mortgage was filed for record, the plaintiff took possession of a part of the property, which at that time had been gathered. At the same time the greater portion of the beans and corn was upon the ground where the same grew, unharvested. The portion of the crop which had been gathered, and that which [155]was still standing on the ground unharvested, were seized by the defendant under said attachment on the 19th day of November, at some time in the day after the mortgage was filed for record. The defendant harvested the portion of the crop standing upon the ground and then took it away, together with that which he found gathered and in plaintiff’s actual possession, and thereby the property became lost to the plaintiff.

The cause was tried by two referees, who reported a judgment in the sum of five hundred and thirty-five dollars for plaintiff against defendant, upon which final judgment was entered. The defendant moved the Court, on the judgment roll, to set aside the report of the referees and to grant a new trial. The Court denied the motion, from which the defendant appealed.

The counsel for appellant has assigned several grounds on which he claims that the judgment should be reversed, only one of which, under the notice of appeal and the assignment of errors in the Court below, it is necessary to consider, and that is to the effect that the Court erred in refusing to set aside the report of the referees, for the reason that they reported a judgment for the plaintiff in the sum of five hundred and thirty-five dollars, when the facts in the case authorized a judgment for eighty dollars only.