Hollenbach v. Schnabel
Before: Seabls
Synopsis
Claim and Delivery—Return oe Property Delivered to Plaintiee —Evidence—Papers on File—Judicial Notice.—In an action of claim and. delivery, where the property was delivered to the plaintiff, and the answer demanded a return of the property or a recovery of its value and damages, and the papers on file were not formally offered in evidence at the trial, a finding of the fact of the delivery of the property to the plaintiff, is supported by the judicial notice of the court of the proceedings had in the cause, the evidence of which, under the official signature of its sheriff was, as provided by the code, on file in the cause.
Id.—Judicial Notice oe Proceedings in Cause.—Courts will take judicial notice of their records and officers, and, when necessary for the administration of justice in a given case, will take such notice of all previous and undisputed proceedings therein appearing of record, certified or authenticated as required by law, and required by law to be on file or of record in the cause.
Id.—Possession by Plaintiff—Judicial Notice of Sheriff’s Return. Where the evidence showed the right of property in the defendant, and the value averred in the complaint is not denied in the answer, the court may determine the question as to the possession by the plaintiff from judicial notice of the return of the sheriff showing its delivery to the plaintiff, and may determine therefrom the right of the defendant as a question of law to a judgment for its return.
Id.—Fraud in Sales—Rescission—Finding of Fact.—Where the property claimed was sold by plaintiff to the defendant, and was sought to-be recovered on the ground that it was procured by fraudulent representations by the defendant, the finding that “plaintiff did not rescind said sales, or either of them, ” is the finding of an ultimate fact, and not of a conclusion of law; and this fact being found, the plaintiff was not in a position to recover the property sold in an action for claim and delivery, even had the court found the defendant guilty of fraud.
Seabls, C. This is an action of claim and delivery, to recover possession of certain liquors sold and delivered by plaintiff to defendant Schnabel, and which, it is claimed, were procured by fraudulent representations of defendant.
The cause was tried by the court, written findings filed, and judgment ordered in favor of defendant:
1. For the return of the property.
2. For the sum of seven hundred and twenty-one dollars and seventy-five cents, the value thereof, in case a return cannot be had.
Plaintiff moved for a new trial, and, his motion being overruled, appeals from the order denying such new trial.
The court found, among other things, that on the twenty-eighth day of December, 1889, the sheriff of Los Angeles county, under and by virtue of an affidavit, undertaking, etc., filed by direction of the plaintiff, took possession of the property, and thereafter and on [315]the third day of January, 1890, delivered the same to the plaintiff, and that the value thereof was and is seven hundred and twenty-one dollars and seventy-five cents.
Appellant contends that there was no evidence in support of these findings.
There was on file among the papers in the case the affidavit and undertaking on behalf of plaintiff for a return of the property, describing it as in the complaint; the return of the sheriff duly certified, showing the taking of the property from defendant, and describing it precisely as in the complaint and affidavit, and the statement that he delivered it to the plaintiff as found by the court. These papers were not formally offered in evidence at the trial, but, being on file as papers in the case, were used by the court in making its findings.
Treated as evidence, they showed conclusively the delivery of the property to plaintiff, and the question arises, should a new trial be granted for this cause?
The Code of Civil Procedure, section 520, requires the sheriff to file the affidavit, notice, and undertaking, with his proceedings thereon, with the clerk of the court in which the action is pending.
The answer demanded a return" of the property, or a recovery of its value, and damages.
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