De Temple v. Alexander

53 Cal. 3 | Cal. | 1878

By the Court :

Had the action of A. M. W. de Temple against the Sheriff proceeded to judgment without the appearance of other parties in the controversy, it is clear that while she might have recovered a judgment in form against the Sheriff for the return of the cattle in controversy, she could not have enforced such a judgment against him. The stipulation of May 15th, united in by all of the 'then parties to the action, was intended to remove the property from the custody of the Sheriff and place it in that of keepers selected by the parties -themselves; and the effect of the stipulation, followed by a delivery of the property pursuant to its terms, was equivalent to a turning over of the property, by consent, to the keeping and control of the parties to the action themselves, in which case it could hardly be claimed that the Sheriff was still to account for its value.

2. For do we think that the intervention, so called, of John and Lucinda Temple, subsequently made in the cause, operated a change of responsibility of the defendant, Sheriff, in that respect. The stipulation was still permitted to remain without objection from any quarter, and the custody of the property provided for by it was not altered or disturbed. The appearance of the new parties, John and Lucinda Temple, was not by the way of ■intervention, though it was so denominated, but in reality by way of substitution. The action had been originally brought by A. M. W. de Temple, their mother, who did not pretend to claim for herself, but only as the representative of her children, John and Lucinda, and as having the custody of the cattle as their property. When, therefore, the children, by their guardian ad litem, appeared upon the record as parties litigant, they were but substituted for the then plaintiff, A. M. W. de Temple, who became thereby superseded and practically dismissed from further participation in the case as a party thereto. As substitutes for her, and as being her successors upon the record, the new parties took up the controversy in the condition in which they found it, and subject to the terms of the stipulation referred to.

It results, from this view, that the judgment in favor of John Temple and Lucinda Temple, in form entered against the defendant, was correct, but there should have been added thereto a direction that the enforcement of the judgment against the property of the defendant be perpetually stayed.

Judgment reversed, and cause remanded for further proceedings in accordance with the opinion, including the appropriate disposition of the property or its proceeds.