Mosgrove v. Harris

Sharpstein, J. Action to recover the possession of certain personal property. Plaintiff claimed and obtained the delivery of the property to him as provided in chapter II., title VII. of the Code of Civil Procedure. The defendant, in his answer, denies that plaintiff is. the owner, or ever was in the possession or entitled to the possession, of said personal property, and alleges that he, [163]defendant, as sheriff of the county of Orange, duly levied upon and attached said property, under and by virtue of a writ of attachment duly issued out of the superior court of said county, in an action wherein the Commercial Bank of Santa Ana was plaintiff, and John Leberry and Claude E. Weber were defendants. The court found that on the first day of March, 1890, John Leberry was the sole owner of all the personal property described in the complaint, and that on the fifth day of March, 1890, he sold said property to the plaintiff for a valuable consideration; “ that such sale was not followed by an immediate or any delivery of said property to said plaintiff, and was not followed by an actual and continued change of possession, or any change of possession whatsoever, but that the possession of said property remained in the possession of said Leberry and his employees.”

On the thirteenth day of March, 1890, the defendant, as such sheriff, and under and by virtue of such writ of attachment, levied upon, attached, and took into his possession the property described in plaintiff’s complaint as the property of John Leberry, the defendant in the said writ, who, at the time of such taking by the defendant herein, had the control and possession of said property until the defendant herein as sheriff took the same from the possession of said John Leberry, his agents and employees. On the eighteenth day of March, 1890, plaintiff demanded of defendant the possession of said property, and at the same time exhibited a bill of sale dated March 1,1890, from John Leberry to plaintiff, but defendant refused to deliver the possession of said property to plaintiff, and on the twenty-first day of March, 1890, plaintiff commenced this action to recover the possession of said property, and made an affidavit and executed and filed an undertaking, and procured an order to the coroner of said county to take from defendant said property, and delivered the same to the said coroner, who, on or about the twenty-fifth day of February, 1890, took said property from the possession of defendant, and delivered the same to the plaintiff herein, [164]