26 Cal. 514 | Cal. | 1864
The only point we can consider, is the alleged error of the Court below in overruling the appellant’s motion for a nonsuit. The other grounds of the motion for a new trial, were not specified, either as regards the insufficiency of the evidence or the errors in law, as is required by the statute (Acts of 1.863, p. 643), and therefore they should be disregarded by the Court below, and cannot be examined on appeal. (Wixon v. Bear River & A. W. M. Co. 24 Cal. 367; Walls v. Preston, 25 Cal. 59; Hutton v. Reed, 25 Cal. 478.)
The appellants insist that the law of this case was settled upon the previous appeal, but in this they are mistaken. The appeal was-from an order granting the defendants’motion for a new trial, and the Supreme Court say : “It seems that it was granted on the ground that the verdict was not sustained by the evidence. The granting of new trials, for such reasons, rests on the sound discretion of the Court, and we see no gross abuse of that discretion in the present case. The order is therefore affirmed.” Such language is quite inappropriate to express the opinion that a nonsuit should have been granted.
The point that “ upon the pleadings themselves the defendants were entitled to a nonsuit” (meaning probably a judgment) is not well taken. The allegation of new matter in the answer, respecting the possession and pretended sale of the sheep—the property in controversy—the place where they were, and the persons who had charge of them are mere matters of evidence, from which the ultimate and issuable fact of the ownership of the sheep, by Forsman, at the time of the service of the attachment might be inferred; but treating them as amounting in the aggregate to such ultimate fact, the allegations of the replication that the sale was made to the plaintiffs in good faith and for a valuable consideration, and that the possession was delivered to them before the levying of the attachment, sufficiently put the alleged facts in issue.
The transaction between the respondents and Forsman
A demand of the property was not required to be made by the respondents before bringing suit, because at the time of its seizure by the Sheriff under the attachment the respondents were in possession and the demand would not give the officer
It is thought that the sale is void because made on Sunday. It is a sufficient answer to say that the statute of 1861 was not designed to prohibit the making of contracts, but the keeping open of a house or place of business on Sunday; that the statute has not prescribed as a penalty for a violation of the Act, that the contract made on Sunday shall., be void; and that this ground was not taken in the Court below on the motion for a nonsuit.
The appellants insist that the respondents, by denying to the Deputy Sheriff, who was about to levy the attachment upon the sheep, that Foreman owned them, and claiming that they had bought them and were in possession of them, misled the appellants, inducing them to believe that Foreman had no interest in the sheep. We think this point is not included in any of the grounds of the motion for the nonsuit. But if it is included in those grounds, the point cannot assist the appellants in this action, for whether the instrument executed by Foreman to the respondents was a bill of sale or a mortgage, the respondents were entitled to the possession under the contract. The mortgagee of chattels holds the legal title of the mortgaged property (2 Hilliard on Mort. 277, 426; Hackett v. Manlove, 14 Cal. 89), and the officer holding an attachment against the property of the mortgagor, is not authorized to take the property out of the possession of the mortgagee. The suppression of the fact that the transaction amounted to a mortgage, if it prevented the officer in any manner from acting, simply induced him not to" do what he had no right to do —that is, to take possession of the sheep. It will be observed that the respondents had been served with a garnishment process by the judgment creditor, and' if they answered untruly the law furnishes a remedy.
Judgment was entered for the value of the sheep, and that sum exceeded the amount of the principal and interest of the debt intended to be secured by the mortgage; but we are not called on to determine whether the judgment was entered for
Mr. Justice Sawyer expressed no opinion.