121 Cal. 240 | Cal. | 1898
This is an action to recover the possession of certain personal property consisting mostly of livestock which was on a ranch owned by the plaintiff. The jury found, for plaintiff, and defendant appeals from the judgment and from an order denying a new trial.
The defendant was a constable, and claimed the property under certain writs of attachment in favor of W. H. Harbell and P. Hardy against one Joseph Hannon—defendant claiming that the property in question was the property of said Hahnom The nature of the case, the principal facts in it, and some of thd principles of law which should govern it, may be found in the opinion of this court delivered when the case was here upon a
- We do not think that the court committed any errors in instructing the jury. The instructions given on the part of the plaintiff were correct; and these instructions, together with those given at the request of appellant, presented the main features of the ease correctly to the jury. The sixth instruction asked by defendant, with intent to apply section 3440 of the Civil Code to this case, was properly refused by the court because it contained the expression “like the one in controversy here.”
The evidence which was admitted was sufficient to warrant the jury in holding that the plaintiff had established title to the property in question. The court did not err in allowing in evidence certain books which showed the condition of accounts between said Hannon and the respondent; there was sufficient evidence to show that the books were kept under the direction of Hannon, and that he delivered them to the respondent as showing the condition of the accounts between them in the business of conducting the ranch. The court did not err in refusing to allow appellant to prove by Harbell declarations of Hannon, made after the sale by the latter to respondent, to the effect that he made a bill of sale to protect his property against creditors; although the ground upon which respondent defends that ruling, to wit, that fraud had not been pleaded in the answer, is not tenable. We see no errors committed by the court other than the one hereinafter mentioned.
The court, however, erred in excluding certain testimony given by Hannon at a former trial of the case, Hannon in the meantime having died. This excluded testimony was to the point that Hannon had transferred the property to the respondent, and given her a bill of sale thereof, for the purpose of hindering and defrauding his creditors, and it also tended in some degree to show that the respondent knew of this purpose when she took the bill of sale. The transcript does not show on what ground this testimony was rejected, but it appears from the argument of counsel that it was rejected because the answer of
The judgment and order appealed from are reversed,, and the cause remanded for a new trial.
Henshaw, J., .and Beatty, C. J., concurred.