Eaton v. Metz

SEARLS, C. This is an action in claim and delivery to recover the possession from defendant of thirteen horses, one four-horse wagon, and one set of double harness, or their value, alleged to be $2,000. The amended answer contains two separate defenses. The first denies the ownership or possession of the plaintiff of the property described in the complaint, or any part thereof, or that it is of any value exceeding $1,200, or that defendant at any time took the same, or any part thereof, from the possession of the plaintiff, or that he wrongfully withholds the same from said plaintiff. The second defense avers that A. C. Eaton was and is the owner of the property described in the complaint, and1 justifies taking the same as a constable of the township of Perris, in the county of San Diego, under and hy virtue of sundry writs of attachment issued out of justice court in and for said township, in actions pending therein in favor of sundry persons against said A. C. Eaton. Defendant further averred as follows: “Defendant, here answering, is informed, and believes, and therefore alleges, that the said Fred. B. Eaton claims to be the owner of the property described in his complaint herein, in virtue of an alleged sale thereof to him by the said A. C. Eaton; and defendant avers also, upon his information and belief, that such alleged sale was made for the purpose and with the design, on the part of said A. C. Eaton and Fred. B. Eaton, to hinder, delay, and defraud the creditors of the said A. C. Eaton, particularly [naming them], and to prevent the taking and application of such property to the satisfaction of the demands of such creditors against said A. C. Eaton.” The cause was tried by the court, and written findings filed, upon which judgment was entered in favor of the defendant for the redelivery to him of all the property described in the complaint, except one horse, viz.: ‘1 One sorrel horse, blind of one [61]eye, mentioned in the complaint, or the sum of one hundred and twenty-five dollars, the value thereof.” Defendant had costs. Plaintiff appeals from the judgment. The ease comes up on the judgment-roll, containing a hill of exceptions, in which the evidence is set out. The court found, in substance, among other things, that at the date of the levy by defendant (on or about October 5, 1892) the plaintiff was the owner of the sorrel horse described in the complaint, but was not the owner of the other property, or any part thereof, but that A. C. Eaton, the father of the plaintiff, was the owner thereof; that plaintiff claims to be the owner of all the property (except the sorrel horse) by virtue of an alleged sale thereof, made to him on or about June 25, 1892; that such sale was not accompanied by an immediate delivery of the property, although such property was then in possession of said A. C. Eaton, and that there was never an actual or continued change of possession. Upon the charge .that the sale was made for the purpose and with the design, by the plaintiff and A. C. Eaton, to hinder, delay, or defraud the creditors of A. C. Eaton, etc., the finding is in favor of the plaintiff, and to the effect that it was not made for any such purpose or with such design. At the trial, plaintiff introduced evidence to show that he was the owner of the property in dispute, and that it was taken by defendant without his consent, etc. At various stages of the trial, in the cross-examination of plaintiff’s witnesses, and when testimony was offered on behalf of defendant, counsel for plaintiff objected to the introduction of any and all testimony tending to show fraud, upon the ground that there was no pleading to support the same. The court overruled these several objections, and the rulings are assigned as error.