Wellman v. English (1869) · DecisionDepot

Wellman v. English

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1869Published

Before: Sanderson

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Holding. A plaintiff in a claim and delivery action is not required to seek immediate delivery of property to maintain the suit, and a plaintiff need not demand the return of property from a sheriff who tortiously seized it from a third party.

Issues

Whether a plaintiff must seek immediate delivery of property to maintain an action for claim and delivery.
Whether a plaintiff must demand the return of property from a sheriff who tortiously seized it under an execution against another person.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We do not understand that a plaintiff in an action under Title VI., Chapter 2, in relation to the claim and delivery of personal property, is required, in order to maintain the action for a delivery, to take steps to secure the immediate delivery”

“The point that in an action against the Sheriff for property tortiously taken by him under an attachment or execution against some other person, the plaintiff must allego and prove a demand for its delivery prior to the commencement of the action, is not well taken.”

Synopsis

Claim and Delivery of Pebsonal Pbopebty.—Li an action for the delivery of personal property, under the code, the plaintiff may or may not, at his election; seek its immediate delivery.

Action against Shebiff—No Demand.—No demand is necessary before suing a Sheriff for personal property tortiously taken by him.

Tobtiocs Taking.—If a Sheriff take property not belonging to the defendant in the writ, whether in his possession or not, the taking is tortious.

Sanderson, J., delivered the opinion of the Court. First—We do not understand that a plaintiff in an action under Title VI., Chapter 2, in relation to the claim and delivery of personal property, is required, in order to maintain the action for a delivery, to take steps to secure the immediate delivery of the property, by making the affidavit and giving the undertaking required for that purpose. We understand that it is the privilege of the plaintiff to claim the delivery of the property at any time before the filing of the answer, but that it is not compulsory upon him to do so. The mere circumstance that he is required to claim the immediate delivery before the answer is filed, or not at all, seems conclusive that, whether he avails himself of that remedy or not, does not affect the question of ultimate relief. But if the question, notwithstanding the foregoing consideration, be doubtful, it is certainly put to rest by the further circum[584]stance that the defendant may retain the property, if he elects to do so; and, also, by the character of the verdict. In declaring what the verdict shall be, the statute, in terms, provides for a case where the plaintiff has not claimed a delivery before the filing of the answer. (Pr. Act, Sec. 177.)

Second—The point that in an action against the Sheriff for property tortiously taken by him under an attachment or execution against some other person, the plaintiff must allego and prove a demand for its delivery prior to the commencement of the action, is not well taken. It was so declared in Ledley v. Hays (1 Cal. 160), and all the cases since then to the contrary, if any, have been overruled in Boulware v. Craddock (30 Cal. 190.) See, also, Sargent v. Sturm (23 Cal. 359), which is a case on all fours with this. If a Sheriff takes property which does not belong to the defendant in the execution, he takes it tortiously, although it be in the possession of the defendant in the execution at the time he takes it.

Judgment and order affirmed.

Hr. Justice Sprague expressed no opinion.

Wellman v. English

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