Kahriman v. Fitzgerald

259 P. 90 | Cal. Ct. App. | 1927

This was an action in replevin to recover an automobile. Defendant, as constable, levied an attachment upon the automobile in a suit by a creditor. Plaintiff herein claims against the defendant and superior to the attaching creditor because of a chattel mortgage. Judgment was for defendant upon the ground that plaintiff's chattel mortgage was void. The evidence showed the mortgage was executed in Fresno County and that thereafter the automobile was taken out of Fresno County and remained in Los Angeles County for more than thirty consecutive days. The mortgage was never recorded in Los Angeles County. The automobile afterward was returned to Fresno County and remained there for about two years before taken in the attachment suit.

Appellant states that the judgment holding the mortgage void was based solely on Civil Code, section 2965, although respondent points out other reasons for the invalidity of the mortgage.[1] Appellant contends that notwithstanding the provisions of that section the mortgage should not be held to be void because, first, the automobile remained in Los Angeles County by reason of repairs made necessary by an accident there and not by the deliberate intention of the possessor, and, second, because at the time of the attachment it had long since been returned to the county of the execution and recordation of the mortgage.

Both of these contentions are fully disposed of adversely to appellant by Hopper v. Keys, 152 Cal. 488 [92 P. 1017].

The judgment is affirmed.

Sturtevant, J., and Nourse, J., concurred.