Susskind v. Hall

BELCHER, C. In 1892, Mrs. L. M. Wagner was engaged in the jewelry business in the city of Los Angeles, the business being chiefly managed by her husband, J. B. Wagner. Her store was at No. 125 South Spring street, and in it she had been accustomed to keep a large stock of goods, consisting, among other things, of diamonds, watches, and jewelry. On September 28, 1892, she filed in the superior court of Los Angeles county her voluntary petition in insolvency, and was thereupon adjudged to be an insolvent debtor. Thereafter A. I. Hall was duly elected and qualified as assignee of the estate of the insolvent, and on November 2, 1892, the clerk of the court, by an instrument in writing, assigned and conveyed to him all the estate, real and personal, of the debtor. The assignee at once took possession of all the goods and property in said store, and held possession thereof till November 16, 1892, when, under an order of the court, he sold the same at public auction to Henry Susskind, the plaintiff herein, he being the highest and best bidder, for the sum of $7,100. The property sold consisted of a great variety of articles, including the fixtures and a safe, of which a list or inventory is presented, covering about thirty-three pages of the transcript. The purchase price was paid and the sale was reported to and confirmed by the court. Susskind immediately took possession of the property purchased, obtained a new lease of the store, and thereupon commenced and thereafter continued the business of selling such goods and of buying and selling other goods of a similar character, until July 26, 1893. On the last-named day all the goods and property then in the store were seized and taken possession of by J. 0. Cline, the sheriff of Los Angeles county, as the property of L. M. Wagner, the insolvent, under a writ of attachment issued in an action commenced by M. Wunsch et al. against her in the superior court of that county. Susskind on the same day notified the sheriff that the property taken was his, and demanded a return thereof, but his* demand was refused. [306]He thereupon commenced this action to recover the possession of said property or the value thereof, alleged to be $20,000, and damages.

The property sought to be recovered is described in the complaint as “a stock of jewelry consisting generally of various articles of gold and silver and plated jewelry, watches, chains, ornaments, also a lot of silverware and plated silverware, lot of fixtures, one safe, lot of diamonds and other precious gems, lot of money, lot of jeweler’s tools and implements, shelving, counters, clocks, all situate and contained in that certain store and premises in the city of Los Angeles known and designated by city number 125 South Spring street. ’ ’ The sheriff answered, denying, for want of information or belief upon the subject sufficient to enable him to answer the allegations of the complaint, that on the twenty-sixth day of July, 1893, or at any other time, plaintiff was the owner, or in possession, or entitled to the possession, of the goods and chattels described in his complaint, or that he, the defendant, wrongfully took the said goods and chattels from the possession of the plaintiff, or unlawfully withheld the same from the plaintiff; and alleging that he took the said property under and by virtue of a writ of attachment, as hereinbefore stated. On the same day this answer was filed, A. I. Hall, the assignee of the insolvent’s, estate, asked and was permitted to intervene in the action. In his complaint in intervention he set up the facts of the insolvency of Mrs. Wagner, her voluntary petition in insolvency, his election and qualification as assignee, the assignment of the estate to him by the clerk of the court, and his taking possession, as such assignee, of all the property of the estate that he was then able to find, his settlement of the estate and final discharge, as such assignee, on May 24, 1893, and the vacation and setting aside of that discharge by an order of the court on September 1, 1893. He then alleged: “That the said Henry Susskind, before the said discharge of said intervener as such assignee, conspired with said insolvent and J. B. Wagner, her husband, to secrete and conceal a portion of said insolvent estate, consisting of diamonds, watches and jewelry, to prevent the same from coming into the possession of said intervener as such assignee, a particular description of which property so concealed is unknown to said intervener, but is known to the plaintiff, Henry Susskind; and