Matteucci v. Whelan
Before: McFarland
Synopsis
Replevin oe Attached Property—Motion eor Judgment upon Pleadings—Amendment oe Answer—Denial oe Title.—In an action of replevin to recover property attached toy the sheriff as the property of another person, under whom plaintiffs claim title, a motion for judgment upon the pleadings for want of a sufficient denial of plaintiff’s title in the original answer may toe obviated by the allowance of an amendment to the answer, in the discretion of the court, so as to make an unobjectionable denial thereof; and upon appeal, it is not necessary to determine whether the original answer sufficiently denied plaintiff’s ownership or right to the possession of. the property, at the ; time-of the commencement of the action, if the denial in the amended answer is clearly sufficient.
Id.—Execution Sale to Plaintiffs—Change of Possession—Construction of Code—Invalid Attachment.—Where the goods attached by the sheriff, and replevied by the plaintiffs, had been previously sold to the plaintiffs as third parties, under execution against the attachment debtor, the rule of section 3440 of the Civil Code, requiring an actual and continued change of possession to the purchasers as against other creditors of the debtor, does not apply, and the mere fact that the purchasers did not choose to remove the property from the control of the debtor, or afterward allowed him to resume control thereof as bailee, does not render the sale constructively fraudulent, so as to authorize an attachment thereof by other creditors of the debtor, as his property, and such an attachment is invalid.
McFARLAND, J. This action was brought to recover certain personal property situated in a building used as a restaurant. The defendant was sheriff, and on the second day of November, 1895, attached the said property as the property of one M. Zaro, under a writ of attachment issued in an action commenced against Zaro by one Witt. The jury, under instruction of .the court, returned a verdict for defendant, upon which judgment in defendant’s favor was rendered. Plaintiffs appeal from the judgment and from an order denying their motion for a new trial.
The pleadings, evidence, and the conduct of the trial leave the case in an unfinished and confused condition. The learned judge of the court below well said that it was “a remarkable case.”
The two main points made by appellants for reversal are: 1. That the court erred in denying plaintiffs’ motion for judgment upon the pleadings; and 2. That the court erred in instructing the jury to find a verdict for the defendant.
1. The court did not err in denying the motion for a judgment in favor of the plaintiff on the pleadings. It is not necessary to determine whether cr not the original answer sufficiently denies that at the time of the commencement of the action plaintiffs were the owners of or entitled to the possession of the property in question; the amended answer does contain such denial, and the court did not err in allowing the amended answer to be filed under the circumstances presented in the record.
2. On the 20th of June, 1895, the sheriff of the city and county of San Francisco, where the property involved was situated, by virtue of an execution issued in the case of one E. Isaacs against the said M. Zaro, sold the property in question hero [314]at public auction to the plaintiffs in this present action and gave possession thereof to the plaintiffs, together with a certificate of sale thereof. At that time Zaro was using the property in conducting a restaurant at Eo. 161 Steuart street, in the city of San Francisco. Zaro had been acting as cook of the establishment and had in his employ a man named Giovanni, whom the plaintiffs employed to take charge of the business, and they hired another man to assist him. The plaintiffs were merchants and visited the restaurant about once a day, supplying it with groceries, wines, et cetera, and paying the bills incurred in the business. They also paid the rent of the premises for two' months. They desired to sell the property as soon as they could find a purchaser; but, after conducting the business in this way for about two weeks and finding that it did not pay, they told Zaro that if he could make it pay he might take the business himself at his own expense until such time as the plaintiffs could find a purchaser. Under this agreement Zaro went into possession and ran the business from June until the next November, when the attachment in the case of Witt v. Zaro was levied. This last attachment suit by Witt was for meat furnished Zaro a short time before the attachment was levied. The foregoing were substantially all the facts proven. There was no evidence at all connecting the plaintiffs with Isaacs, under whose judgment against Zaro the property was sold by the sheriff under execution in June. From all that appears the plaintiffs were strangers to that suit and execution, and purchased at the public sheriff’s sale as any other stranger would have had the right to do. It was with reference to this sale under the execution in June that the court said in the presence of the jury: “There is no evidence to show such an actual, continued, exclusive change of possession as is required under the statute of frauds,” and instructed the jury, after the case had been submitted, as follows: “In this case I am satisfied that there was no such change of possession of this property as the law required; that this alleged sale and alleged delivery of possession of the restaurant was void as against this creditor represented by Mr. Witt, who commenced the attachment suit; and the defendant is entitled to a verdict at your hands. Therefore, I direct you to find a verdict in this case in favor of the defendant; the clerk will give you the verdict, and you will select a foreman,
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