Wingard v. Banning

Crockett, J., delivered the opinion of the Court, Rhodes, C. J., and Temple, J., concurring :

The plaintiff sues to recover certain machinery for a quartz mill, which he avers the defendant has converted to his own use. The machinery was originally the property of the Mitchell and Owens Mining Company, from which company the plaintiff deraigns his title through a judgment and execution against the company, a Sheriff’s sale to one Mitchell, and a conveyance from Mitchell to this plaintiff. The defendant is a common carrier, and, as such, contracted with the mining company to transport the machinery from [547]San Francisco to Owensville, in Inyo County, which service he duly performed; but the company having failed to pay the freight, he declined to deliver the machinery, and transported it to Camp Independence, in the same county, where he left it on the parade-ground; the commanding officer of the post promising to look after it, and one Mathews, who resided on a farm in the vicinity, also being requested to take care of it. Subsequently the defendant commenced an action in Los Angeles County against the mining company for the recovery of the balance due for the freight, and to enforce his lien on the machinery to secure its payment. But he also took out an attachment in the same action against the company, which was levied on the machinery in Inyo County, and in procuring the attachment made the affidavit required by the statute, to the effect that the debt was not secured by any lien or mortgage. He subsequently obtained an ordinary money judgment against the company in this action; but there was no provision' in it adjudging a lien on the machinery, or directing its sale. On this judgment an execution in the usual form was issued, which was levied on the machinery, and under which it Avas sold to the defendant for a sum considerably less than the amount of the judgment. The sale to Mitchell under his judgment and execution against the company was several months prior to the institution of the action by the defendant, and the plaintiff claims that Mitchell acquired a valid title to the machinery, subject to any lien to which the defendant was entitled for the unpaid freight money; but he further claims that the defendant lost his lien by an abandonment of the possession of the property, and that, if it was not sooner lost, the levying of the defendant’s attachment and subsequent execution on the machinery was, in law, an abandonment of the lien which he held as a common carrier. On the trial the Court rendered a judgment for the defendant, and the plaintiff has appealed.