Hillman v. Griffin

VAN DYKE, J. This action is in the nature of replevin. The plaintiff claims the property through purchase from Mrs. Emma H. Briggs, owner of the Glorietta Vineyard ranch in Yolo county. It consists of a large quantity of boxes and trays used on a fruit ranch, together with the tools and implements of various kinds necessary for the cultivation of such ranch, all embraced in the bill of sale dated the 12th of January, 1895, for the consideration, as stated by the plaintiff, of $6,000; also two mules and one mare, of the value of $500, not embraced in said bill of sale but purchased by the plaintiff from the said Mrs. Briggs in 1893. The defendant justifies the taking of the property in question as sheriff of Yolo county under proceedings in attachment in the suit of the [355]West Valley Lumber Company, a corporation, against said Emma H. Briggs. The property, at the time of the seizure and taking by the defendant as sheriff, was on the said Glorietta Vineyard ranch. The affidavit in the attachment proceedings states that the action is brought upon a certain promissory note for the principal sum of $3,160, dated June 30, 1893, due eight months after date, with interest at the rate of ten per cent per annum from date until paid; “that the same has been and is secured by a mortgage on real property, as appears of record in the records of Yolo county, California, in book 37, at page 626; that since the making and delivery of said mortgage, without any act of plaintiff, such security has become and is valueless.” The defendant in said action, Mrs. Emma H. Briggs, appeared in the action, but raised no objection to the attachment proceedings. In rebuttal the plaintiff offered to prove the value of the Glorietta Vineyard ranch, the property covered by the mortgage to the West Valley Lumber Company, and that it had not decreased but had increased in value, and was worth more than the prior encumbrance thereon, and had not become valueless since the mortgage to the said West Valley Lumber Company, as stated in said affidavit. The court sustained an objection to this offered testimony, and this ruling of the court is assigned as one of the errors on the part of plaintiff, and pressed with considerable vigor. The plaintiff was not a party to the attachment suit, and the offered testimony is in the nature of a collateral attack by a stranger to the proceeding. In Shea v. Johnson, 101 Cal. 457, 35 Pac. 1023, the contest was between a junior and prior attachment, and it was sought, as in this case, to attack the prior attachment collaterally, and the court said: ‘ ‘ The general rule is that, where the claim of the prior attaching creditor is for a bona fide debt without tinge of fraud, such an objection to the attachment proceedings as that insisted on in the case at bar can be successfully made only by the defendant in the attachment suit”; citing Fridenberg v. Pierson, 18 Cal. 152, 79 Am. Dec. 162; Patrick v. Montader, 13 Cal. 435; Harvey v. Foster, 64 Cal. 296, 30 Pac. 849; Scrivener v. Dietz, 68 Cal. 1, 8 Pac. 609; Drake on Attachments, sec. 771. In Scrivener v. Dietz, referred to, as in this case, it was sought to impeach the affidavit in the attachment proceeding, and the court say: “Admittedly,