Norcross v. Nunan, 61 Cal. 640

Norcross v. Nunan

61 Cal. 640 | Cal. | 1882

Lead Opinion

Myrick, J.:

This was an action for the recovery of personal property or its value, and for damages for its detention. But the plaintiff did not claim the delivery of the property to him before judgment. The defendant, Sheriff, justified under a writ of attachment and an execution.

1. Conceding that the Court below was correct in refusing to admit the writ of attachment in evidence because of the defect in the affidavit in stating that the amount claimed was due on a contract, without stating whether it was due upon either an express or 'implied contract, yet the defendant was entitled to have the execution in evidence upon which to base the defense that the transfer of the property from Gordon and Cory to plaintiff was fraudulent and void as to creditors. We think the evidence of the plaintiff clearly shows that the transfer was void as to creditors. (C. C., § 3446.) 'The Sheriff did not take the property from the possession of plaintiff; and even if there were irregularities in the proceedings for the judgment, such irregularities would not prevent the officer from justifying under an execution valid on its face. There is nothing on the face of the execution to show its invalidity. The rule is fully stated in Freeman on Executions, Section 101:

*643“ The Sheriff may limit his inquiries to an inspection of the writ. If the writ is issued by the proper officer, in due form, and appears to proceed from a Court- competent to exercise jurisdiction over the subject-matter of the suit; to grant the relief granted and enforce it by the writ issued; and there is nothing on the face of the writ showing a want of jurisdiction over the person of the defendant, or showing the writ to be clearly illegal from some other cause, the officer may safely proceed. That from some cause, not shown in the writ, the judgment or writ was irregular or void, will be of no consequence to him. He can justify upon producing the writ. It is therefore immaterial to him that the judgment does not correspond to the writ or that there ever was any such judgment in existence.”

The same rule applies to a Court of limited jurisdiction, if the subject-matter of the suit is within that jurisdiction, and nothing appears on the face of the process to show that the person was not also within it. (Savacool v. Boughton, 5 Wend. 170; S. C., 21 Am. Dec. 181.)

2. The Court instructed the jury to render a verdict for plaintiff for the property, and to find the value of the property and the damages. The jury found the value of the property and the damages, and returned a verdict for the plaintiff for such value and damages, but did not find for the plaintiff for the property. This was error. Under this verdict and the judgment thereon the plaintiff could not have elected to deliver the property.

Judgment and order reversed, and cause remanded for a new trial.

Morrison, C. J., concurred.

Concurrence Opinion

Sharpstein, J., concurring specially;

The defendant by way of justification alleged in his answer that he took and held the property sued for by virtue of an execution issued upon a judgment obtained in a Justices’ Court by “one J. Murphy * * * against one Gordon and Cory.” To sustain that allegation the defendant offered in evidence an affidavit and undertaking for attachment, and a writ of attachment entitled, “ James Murphy, plaintiff, v.. *644John Doe Gordon and Bichard Boe Cory, defendants,” to the introduction of which the plaintiff’s counsel objected “on the ground that the affidavit is insufficient, and that it is a fictitious person who is alleged to be indebted to Murphy and not B. B. Cory and Thomas H. Gordon.” The Court sustained the objection and the defendant excepted. The objection does not specify wherein the affidavit is insufficient; but on the argument it was suggested that it did not state whether the indebtedness was upon a contract express or implied. It did state that it was “ upon a contract for the direct payment of money, to wit, for labor and services performed for defendants at their request.” That appears to be sufficient.

The second ground of objection is clearly untenable. It nowhere appears that John Doe Gordon and Bichard Boe Cory were “ fictitious persons,” or that they were not the Gordon and Cory referred to in the answer.

Defendant next offered in evidence the summons and judgment-roll in the same action. Plaintiff’s counsel objected to their introduction “ on the ground that the summons is void, and not sufficiently definite to apprise the defendant of the nature of the action, and that the judgment is void.

The objection was sustained and the defendant excepted. The attention of the Court is not directed by the objection to any particular fatal defect in the summons or judgment, and an inspection fails to disclose any such defect in either.

Finally, the defendant offered the execution in evidence, and “ the same ruling and objection as last was made by the Court, and exception taken.” The execution appears to be sufficient in form and substance, and the ruling of the Court was erroneous. Under the pleadings the- evidence offered was clearly admissible, and the Court erred in sustaining the objections to its introduction.

I therefore concur in the judgment.