192 F. 72 | U.S. Circuit Court for the District of Northern California | 1911
The complaint in this case counts in trespass for damages suffered by the wrongful seizure and conversion of certain personal property belonging to plaintiff under a writ of attachment. Defendant has demurred thereto on several grounds, which majr be briefly noticed.
Wherein, under well-established principles, these facts are lacking in the essentials of a cause of action for a tortious taking and conversion of property, is not readily to be perceived. Certainly no question is better settled by the course of decision generally under our system than that one who takes the property of another without right, whether under color of official authority or otherwise, is guilty of a wrongful and tortious act, and that an action in the nature of either trespass, trover, or replevin will lie for its correction. This' is true as well where the property is taken under a supposed claim of right as where the taking is with knowledge of the wrong, since in either case the trespasser acts at his peril. And one who directs the taking by an officer executing a writ of property not rightfully subject thereto is equally guilty of the wrong committed as the officer who executes the writ. In such an instance both the officer and the one who directs the taking are joint tort-feasors, and either one or both may be held responsible by the owner at his election. These principles are so thoroughly established as to require no elaborate citation of authorities in their support. Marsh v. Backus, 16 Barb. (N. Y.) 483; Meade v. Smith, 16 Conn. 346; Sangster v. Commonwealth, 17 Grat. (Va.) 124; Woodbury v. Long, 8 Pick. (Mass.) 543, 19 Am. Dec. 345; Caldwell v. Arnold, 8 Minn. 265 (Gil. 231); Knight v. Nelson, 117 Mass. 458.
But it is sufficient to say that defendant has wholly misconceived the purpose and effect of this provision. It was intended, as its language imports, for the benefit of the sheriff, to protect him against the consequences of proceeding in good faith to hold or sell seized property as that of the defendant in the attachment or execution, and thereafter, when too late, to restore it to the true owner, find himself liable to the latter for its conversion, and the provision is not to be construed as in any wise limiting the common-law right of the owner as against a wrongdoer, such as the defendant here, participating in the trespass. Paden v. Goldbaum, 37 Pac. 759, 761;
“Whether the failure of a plaintiff to serve such verified claim would be a defense to an action for damages for the conversion of the property, or only to an action in claim and delivery to recover possession of the property from the officer (a question discussed by counsel), need not be considered here, in view of the conclusion reached upon the question of pleading.”
This disposes of the first objection to the complaint.
The demurrer to the complaint will be overruled.
Reported in full in tbe Pacific Reporter; reported as a memorandum decision without opinion in 104 Oal. xviii.