Hefner v. Herron

The Court. This action was instituted by the plaintiff as assignee of the estate of the Wah Sang Yen Company, insolvent debtors, to recover possession of six tons of dried fruit, or the value thereof.

At the trial, no evidence was introduced on either side, and it was stipulated that the only question to be determined by the court was whether the taking of the property, as alleged in the complaint, and as explained and justified in defendant’s answer, was wrongful or not

[474]The facts stated in the pleadings are, in substance, as follows: “ In September, 1895, the Wah Sang Yen Company was a partnership, doing business in Butte county, and the defendant was then, and at all the times mentioned, the duly appointed, qualified, and acting constable of Honeut township, in that county. On September 16th, one Burgan commenced an action against the said company in the justice’s court of said township, in which a writ of attachment was regularly taken out and placed in the bauds of defendant for service; and under and by virtue of this writ the defendant duly levied upon, attached, and took into his possession the said six tons of dried fruit. On the same day another action was commenced by one Herron against the same defendant, and in the same court, but it does not appear that any writ of attachment was taken out and served in that case. Such proceedings were thereafter had in each of said actions that, on September 28d, judgment was duly given, made, and entered therein in favor of the plaintiff, and against the defendant—in the one first named for the sum of ninety-nine dollars and twenty-four cents, and costs of suit, and in the other, for the sum of twenty-two dollars and thirty-five cents, and costs of suit. Thereupon, writs of execution upon said judgments were duly issued and placed in the hands of defendant for service, and thereunder, on the same dajq he levied upon and took into his possession the said dried fruit. Subsequently, after due and legal notice, he sold at public auction so much of the same as rvas necessary to satisfy said judgments, costs, and expenses of sale.

On September 24th, the creditors of the Wah Sang Yen Company filed in the superior court of said county their petition, praying that the said company, and each of the members thereof, be adjudged and declared to be insolvent debtors under the provisions of the Insolvent Act of 1895. A receiver was thereupon appointed, and, on October 14th, an order and adjudication was duly made and entered in said court, whereby the said com