George H. Fuller Desk Co. v. McDade, 113 Cal. 360

113 Cal. 360 | Cal. | 1896

Britt, C.

Action against McDade and the sureties on his official bond given to qualify him for the office of sheriff of the city and county of San Francisco, to which he was elected in November, 1892. The condition of the bond was that he would perform the duties of his office according to law. Plaintiff alleged in its complaint that it was on May 25, 1893, and is now, the owner of certain goods described, of the value of eleven hundred and thirty-two dollars, at that date in the possession of the Carnall-Hopltins Company, a corporation; that on said May 25th McDade, in his capacity of sheriff aforesaid, and acting in virtue of a writ of attachment against the property of said Carnall-Hopltins Company, levied upon and took from its possession the said goods of plaintiff, and detains the same against plaintiff's will, “and notwithstanding that immediately thereafter plaintiff notified said defendant McDade that plaintiff was the owner thereof, and demanded possession thereof. .... That by reason of the wrongful conversion ” of said goods, plaintiff was damaged in the sum of twelve hundred dollars, for wdiich it prayed judgment. Defendants appeal from the judgment entered on a verdict in plaintiff’s favor for the sum of eleven hundred and thirty-two dollars.

Appellants insist that the complaint at best makes a case for the recovery of the property seized, and that the judgment for its value—not as an alternative if delivery cannot be had—is erroneous, for, they say, no conversion of the property is alleged in the complaint. We agree with them that the talcing from the possession of the Carnall-Hopkins Co., the defendant in the writ of attachment, was not of itself a conversion of the property taken. “When an officer proceeds to execute an attachment, he is authorized to seize any personalty found in the defendant’s possession, if he have no reason to suppose it to be the property of another.” (Drake on Attachment, sec. 199.) We conceive this to be the correct rule, and in accord with most of the cases in this court touching the subject. (Ledley v. Hays, 1 Cal. 160; Dawmiel v. Gorham, 6 Cal. 43; Killey v. Scannell, 12 Cal. 73; Paige v. O’Neal, 12 Cal. 483, 495; Babe v. Coyne, 53 Cal. 261; Brichman v. Ross, 67 Cal. 601; Black v. Clasby, 97 Cal. 482; Murfree on Sheriffs, secs. 964, 965.) Though a different doctrine seems to be taught in Boulware v. Craddock, 30 Cal. 190, and Wellman v. English, 38 Cal. 583. In order, therefore, to make out that the sheriff committed an actionable wrong, when, as in this instance, it is not charged in terms that he converted the property to his own use, facts should be stated to show that upon notice of the true owner’s claim he refused to surrender the property. We think it must be held that such facts appear in the complaint here (Arzaga v. Villalba, 85 Cal. 191, 196, and cases cited); true, rather by way of recital, when they should have been alleged directly; but the demurrers interposed by defendants do not include this fault among the grounds they specify, and under the rule requiring objections based on such defects to be taken by special demurrer, we are not at liberty to treat the complaint as bad on that account. (San Francisco v. Pennie, 93 Cal. 465; Santa Barbara v. Eldred, 108 Cal. 294.)

Appellants claim further that the complaint is bad in that it does not allege a demand for the property in the manner and form prescribed by section 689 of the Code of Civil Procedure, as amended in 1891, and in that a cause of action against McDade for a tort is misjoined with a cause of action against his sureties based on their contract. These points have been ruled adversely to their contention in recent decisions. (Brenot v. Robinson, 108 Cal. 143; Bell v. Peck, 104 Cal. 35.)

The judgment should be affirmed.

Searls, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed.

McFarland, J., Temple, J., Henshaw, J.

Hearing in Bank denied.