Hawkins v. Roberts

By the Court: It may be that if after a levy of a writ of attachment upon personal property by taking it into possession the officer permit the defendant in attachment to resume its possession, the levy would be thereby defeated as against execution or attachment creditors subsequently levying thereon, or against a subsequent purchaser from the defendant in attachment, who, upon such purchase, takes the possession thereof. The eases of Dutertre v. Driard, 7 Cal. 549, and Sanford v. Boring, 12 id. 539, assert that principle. But the question in [42]those cases arose between the creditors claiming under the first attachment, upon which the possession had been relinquished, and subsequent attachment or execution creditors, who had caused it to be seized after its possession under the former attachments had been lost. In this case, however, the contest arises between a prior vendee of the defendant in attachment, who did not take the possession, and the Sheriff, who, finding the goods still in the possession of the plaintiff’s vendor, levied an attachment thereon, and kept possession thereunder for several weeks, and then permitted the property to go hack into the hands of the plaintiff*’s vendor, as the Sheriff’s keeper. The only question made against the validity of the Sheriff’s levy is that he did not keep the possession of the property.

But, whether he had kept a continuous possession or not, the case of the plaintiff concedes that at and before the time of bringing the action the Sheriff was in the actual possession of the property, and had refused to deliver it to the plaintiff!, upon demand made upon him for that purpose. If the defendant was in possession, as alleged in the complaint, then the attachment under which he justified was a defense to the action—if he was not in possession, then the action of replevin in the detinet cannot be supported against him. The plaintiff cannot treat him as in possession for the purpose of suing him, and then recover a judgment against him on the ground that after all he was not in possession.

. Judgment and order denying new trial reversed, and cause remanded for a new trial.