Orton v. Brown

Haynes, C. This appeal is from a judgment in favor of the defendants entered upon a verdict of the jury in their favor.

This case was before this court upon an appeal from an order denying the plaintiff’s motion for a new trial, and said order was affirmed. (Orton v. Brown, 113 Cal. 561.) We can conceive of no reason why both appeals were not taken at the same time. It would certainly have lessened the expense to the parties and materially lessened the labors of this court to haye had both appeals taken and heard together.

Appellant states the questions to be determined on this appeal as follow's: “1. Is the verdict sufficient to support the judgment? 2. Does the verdict correspond with the issues presented by the pleadings? 3. What issues do the pleadings present?”

As to the first point it may be said that if any material issue is raised by the pleadings the verdict must support the judgment; so that the only question is whether any issue w'as made which, if decided in favor of the defendants, entitled them to a judgment.

This action is upon the bond of T. M. Brown, as sheriff of Humboldt county. The plaintiff is the assignee of the Consumers’ Lumber Company, an insolvent corporation. The complaint alleges in substance the following facts: On May 2,1891, and prior to the insolvency proceedings, one Georgson obtained judgment against said corporation for the sum of one thousand and thirty-one dollars and fifty-eight cents and costs. On May 7th an execution issued thereon was levied upon certain lumber and shingles which had been attached in said [503]action, and on May 20th said property was sold by the sheriff in one lot, and not in separate parcels, for the sum of seven hundred dollars, to H. H. Buhne, Jr. Three days later said corporation, upon notice to the judgment creditor, the sheriff, and said purchaser, moved the court to set aside the sale upon the ground of irregularity, in that a large quantity of lumber and shingles were sold in one lot for a grossly inadequate price. Said motion was heard on June 3d, and an order made vacating the sale and ordering “ that the money paid by the sheriff to satisfy preferred claims be returned to the sheriff by the parties receiving the same, and that.the seven hundred dollars paid by Mr. Buhne for the property be returned to him by the sheriff,” and ordering a resale of said property to be made according to law. Buhne appealed from said order June 23, 1891, and on November 21, 1892, the supreme court affirmed the order. The lumber company was adjudged an insolvent debtor August 14, 1891, and on appeal said judgment of insolvency was affirmed May 20, 1893, and the plaintiff herein was thereafter appointed as assignee.