Howe v. Johnson

Searls, C. This action is brought to recover five hundred dollars damages for the unlawful taking and conversion of a stock of liquors, bar fixtures and furniture, the property of one L. Koch, and by him assigned to the plaintiffs herein December 31, 1895. Defendant denied the allegations of the complaint.

For a further answer he justified the taking by showing that he was and is the sheriff of the county of Sacramento; that in an action in which Thomas B. Hall was plaintiff and L. J. Wells was defendant in the justice court of Sacramento township, county of Sacramento, a writ of attachment duly issued and was placed in his hands for execution; that under and by virtue of said writ he, as sheriff, levied upon and took into his possession the property in question as the property of said L. J. Wells, the defendant in said action.

The answer shows that a judgment was subsequently obtained in said action against said Wells, and that an execution issued thereon, under which defendant as such sheriff sold the property.

[39]The cause was tried by the court, and written findings were filed, in which the court found all the allegations of the complaint were true, except that the value of the property taken was three hundred and thirteen dollars instead of five hundred dollars as alleged in the complaint, and except that the articles taken by defendant were those described in his answer. Thereupon judgment was rendered in favor of the plaintiffs.

Defendant appeals from the judgment. The record contains a bill of exceptions or statement of the testimony.

The testimony tended to show that L. J. Wells kept a saloon known as the Yosemite saloon, at No. 228 “J” street, Sacramento, in the year 1895, and owned the stock of liquors, cigars, bar fixtures, furniture, etc., therein.

L. Koch was a bartender for Wells from October 13th to December 23, 1895, at sixty-five dollars per month. The latter was indebted to the former in December in the sum of two hundred and forty dollars, viz., one hundred and forty dollars for wages and one hundred dollars for money loaned, in evidence of which Koch held the promissory note of said Wells. Koch desired payment, and Wells having no money proposed to Koch that if he Avould pay him another one hundred dollars in cash, give up the note and receipt his demand for wages, he, Wells, would sell to him the stock, fixtures, etc., in the saloon. Koch accepted the offer, and on the twenty- sixth day of December, 1895, the sale was consummated, a bill of sale was given to Koch by Wells, the money paid, note given up, claim canceled, etc. Koch received possession of the property, and having no license to sell liquor locked up the saloon and carried the key.