Tower v. McDowell

VANCLIEF, C. Action in the nature of trover to recover the value of certain personal property of plaintiff’s, alleged to have been wrongfully taken and converted to his own use by the defendant. The defendant denied that the plaintiff owned or possessed the property at the time it was taken, [715]and alleged that it was then owned and possessed by F. C. Tower, plaintiff ’s husband, and-F. B. Bates, from whom defendant, as sheriff, took it by authority of a writ of execution against them in favor of the First National Bank of San Diego. It was further alleged in the answer of defendant that F. C. Tower and F. B. Bates made a bill of sale of the property to plaintiff without consideration, and for the purpose of defrauding their creditors, and that the sale was not accompanied by an immediate delivery of the property, nor followed by an actual or continued change of possession thereof. The cause was tried without a jury, and the court found the facts on all the material issues in favor of the plaintiff, and rendered judgment accordingly for. the sum of $3,349.39. The defendant appeals from the judgment, and from an order denying his motion for a new trial.

The evidence, though conflicting, on the issues as to value, immediate delivery, and continued change of possession of the property, is sufficient to justify all the findings of fact, and the findings support the judgment; nor do appellant’s counsel seem to contend with much confidence to the contrary, but in their reply brief say: ‘ ‘ The principal error complained of by appellant on the trial, on the motion for new trial, and on this appeal, is the refusal of the trial court to permit evidence of the sums for which the property sold at a well attended, fairly conducted auction sale, at which the bidding was spirited, and the competition sharp.” This refers to the sheriff’s sale of the property in question, consisting of the stock of a livery-stable—horses, buggies, wagons and appliances, about fifty in number. Indeed, the only possible ground for reversal available to appellant is that the court erred in excluding or admitting evidence touching the issue as to the value of the property, since the defendant did not offer in evidence the execution under which he justified the taking, nor any execution whatever, nor the return upon any execution. The plaintiff, however, in rebuttal, put in evidence the execution under which defendant justified (issued March 5, 1889), and the sheriff’s return thereon, showing that he received the execution on March 5, 1889, levied it on July 13, 1889, and sold the property on July 29, 1889, in separate parcels, for the aggregate sum of $2,355.42. It thus appears that the best evidence of what the property sold for was i:i