Barnhart v. Fulkerth

McFarland, J. This is an appeal by plaintiff from an order denying him a new trial. He had also taken an appeal from the judgment, and on that appeal the judgment was by this court affirmed. (90 Cal. 157.) There had also been an earlier judgment in the trial court in favor of plaintiff; and on appeal by defendant from that judgment, and from an order denying a new trial, it was reversed and a new trial ordered. (Barnhart V. Fulkerth, 73 Cal. 526.) Upon those two appeals the main questions in the case were decided against the contention of plaintiff. In the last appeal from the judgment, it was definitely determined as the law of the case that the findings supported the judgment. The only questions arising upon this present appeal from the order denying a new trial appertain to the sufficiency of the evidence to justify the findings and rulings of the court as to the admissibility of evidence. The evidence as to the main issues of fact is voluminous and somewhat conflicting, and it would be a useless labor to review it here in detail. It is sufficient to say that .there is no reason for disturbing the findings of fact made by the trial court, upon the ground that they are not warranted by the evidence.

There are only two alleged errors on rulings upon the admission of evidence which are relied upon, one relating to the testimony of Howel, and the other to the testimony of Barnhart.

The action was to recover certain wheat in a warehouse claimed by plaintiff, but attached and sold by defendant Fulkerth, sheriff, as the property of one Davis, upon a writ issued in a certain action brought by Mathews and wife against said Davis. Davis owed the plaintiff, Barnhart, two thousand, five hundred dollars, and had pledged the wheat to the latter to secure that sum of money; and when the sheriff attached the wheat, he tendered the plaintiff the amount of his debt and lien. The witness Howel was the attorney of the Mathewses, and was also acting as the agent for the sheriff; and immediately before the attachment was levied, he visited [499]the plaintiff, Barnhart, and asked him about the ownership of the wheat. Barnhart told him that the wheat belonged to Davis, and that he (Barnhart) had a lien on it for two thousand five hundred dollars and interest. Afterwards it was claimed by Barnhart that the wheat, at the time of the attachment, really belonged to one Vancel, who lived in an Eastern state, and to whom Davis had deeded a life interest in the land upon which the wheat had been raised. Defendants contended, among other things, that under these circumstances, wherever the .strict legal title to the wheat may have been, Barnhart was estopped from denying that it belonged to Davis.