Ellsassar v. Hunter

By the Court, Currey, J. This action was brought to recover damages for the alleged wrongful taking of the goods and chattels of the plaintiff by the defendants and converting the same to their own use.

In answer to the complaint the defendants say, at the time of the commission of the -wrongs and injuries complained of, the defendant Hunter was Sheriff, and the defendant Lowry was Deputy Sheriff of El Dorado County, and that by virtue of a writ of execution issued upon a judgment obtained by M. O’Connor against D. Hewbauer for a large sum of money specified, they levied upon and siezed the property described in the complaint as the property of said Hewbauer, and they aver that the same was his property and liable to be seized for his debts. The answer also charges that while Newbauer was indebted to O’Connor, he made pretended sales and transfers of his personal property to the plaintiff, for which no consideration was paid, and that such pretended sales were made to hinder, delay, and defraud O’Connor in the collection of the debt due him, of which intent the plaintiff had knowledge ; that the property so transferred by Newbauer to plaintiff was sold by the latter, and with the proceeds thereof and other funds of Hewbauer, other goods and chattels were purchased by the plaintiff in his own name, but in fact for Hewbauer, and that they claimed and pretended that the property [283]thus acquired belonged to plaintiff for the purpose of hindering, delaying and defrauding Newbauer’s creditors in the collection of their debts. Other transactions of like character are set forth in the answer implicating Newbauer and the plaintiff, and other persons co-operating with them in a con- ■ spiracy to defraud Newbauer’s creditors by other pretended sales and transfers of the goods and chattels of Newbauer, and by procuring the institution of actions for ficticious debts against him and the seizure and sale of his property on judgments suffered in such actions.

The defendant Hunter also, by a separate answer, alleged that Newbauer applied to the County Court of El Dorado County to be discharged as an insolvent from his debts, and that he, as the Sheriff, was appointed his assignee in insolvency, and that such proceedings were had in the insolvency case that Newbauer was discharged from his debts ,• and he then charges that Newbauer was, at the time of his discharge, the owner of the property on account of which this action was brought, and omitted to surrender the same to him as such assignee; but that afterward the same property came to his possession under the execution issued on the judgment in the case of O’Connor against Newbauer, and having thus obtained the possession he claimed to hold the property by virtue of the assignment, in trust for the creditors of Newbauer.