110 P. 922 | Cal. | 1910
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *238 This appeal was originally taken to the district court of appeal for the second district. Judgment in the trial court was for the defendant and the plaintiff appeals upon the judgment-roll alone. The decision of the district court was vacated and the cause transferred to the supreme court for reconsideration.
The action was to recover damages from the defendant, as sheriff, for levying an execution upon certain personal property upon which the plaintiff held a mortgage, without paying the mortgage debt. The mortgage was executed to plaintiff by J.H. Scales and C.P. Halfhill on September 11, 1906, and was recorded on the same day. The trial court found that the property mortgaged consisted of furniture, tables, stoves, ranges, cooking utensils, and equipment contained and used in a certain restaurant, but that it was not in any manner connected with a hotel, although it was property of a kind usually found in hotels. The mortgage is set forth in the record and the description of the property therein shows that it consists principally of tables, chairs, dishes and other household and kitchen furniture of various kinds. The so-called judgment upon which the execution in question was issued was based *239 on a complaint filed in the superior court on September 12, 1906, stating a cause of action in favor of James T. Cleary and against J.H. Scales and C.P. Halfhill, upon a promissory note dated July 2, 1906, payable to W.R. Bacon, due thirty days after date, for $575, executed by J.H. Scales and C.P. Halfhill and assigned by Bacon to Cleary. Execution was issued to the defendant on September 12, 1906, and immediately levied upon the mortgaged property. No payment or offer to pay the mortgage debt was made. On September 13, 1906, the plaintiff served upon the defendant a demand that he either pay the amount of the mortgage debt or release the property from the levy.
The plaintiff claims that Cleary, the holder of the judgment, is bound by the mortgage, even if it was not executed as prescribed in the Civil Code, and even if the property is not of a class which, by the provisions of the code, was subject to mortgage at the time it was executed. This claim is based upon the provisions of section 2973 of the Civil Code. This section was added to the code in 1905. (Stats. 1905, p. 617.) It reads as follows: "Mortgages of personal property, other than that mentioned in section
Judgment in the court below was given for the defendant upon the theory that the property described was not subject to be mortgaged under the provisions of section
"Mortgages may be made upon the following personal property and none other: —
". . .
"8. Upholstery, furniture and household goods.
". . .
"22. The bedroom furniture, carpets, tables, stoves, ranges, cooking utensils, and all furniture and equipment usually found in a hotel."
The court below was evidently of the opinion that clause 22 of the section was the only clause applicable to the case and that as the property was contained and used in a restaurant and was not in any manner connected with a hotel, it was not of a character which the statute allowed to be mortgaged. In Blaisdell
v. McDowell,
It is contended on behalf of the defendant that as the property at the time of the levy was in possession of Scales and Halfhill, the defendants in the execution, he could justify under his writ by producing the writ alone, without establishing the existence of the judgment upon which it was founded. That this is the general rule cannot be disputed. The rule does not apply, however, when the officer executing the writ is infringing upon the rights of third persons in the property. *243
Usually this exception to the rule consists of cases where the levy is made when the property is in the possession of a third person claiming title. But in view of the principles upon which the exception is founded, we think it must apply also to any case in which third persons have an interest in the property levied upon which will be affected or destroyed by the levy. In Knox v.Marshall,
In the case at bar the defendant failed to show the existence of any judgment. According to the findings, the complaint of Cleary against Scales and Halfhill was filed on September 12, 1906, and on the same day the defendants, Scales and Halfhill, signed and delivered to Cleary, and Cleary filed with the clerk, a document entitled in the cause, in which they admitted all the allegations of the complaint, entered their appearance to the action, consented and requested that the clerk should enter a judgment against them for the amount demanded in the complaint, and waived the right to answer. The finding is that this document was filed and recorded by the county clerk in the "judgment docket" of the records of *245
his office and that no other judgment was ever entered in the cause. The law requires that judgments be entered in the judgment book (Code Civ. Proc., sec. 668). Thereupon the judgment-roll must be made up as provided in section
As the judgment is to be reversed and a new trial may show different facts, it is proper to consider here the alleged defect in the affidavit of the parties to the mortgage. On behalf of the plaintiff the affidavit was made by J.F. Reynolds, its secretary. A corporation cannot take an oath. When an affidavit is required of a corporation, and no particular officer is designated in the statute as the person who shall make it, it may be made by any one of its officers or agents in its behalf. The affidavit of Reynolds, Scales, and Halfhill was as follows: "J.H. Scales and C.P. Halfhill, mortgagors in the foregoing mortgage named, and J.F. Reynolds, secretary of Old Settlers Investment Company, a corporation, the mortgagee in said mortgage named, each being duly sworn, each for himself doth depose and say: that the aforesaid mortgage is made in good faith and without any design to hinder, delay or defraud any creditor or creditors." It was duly signed and sworn to. The criticism is that Reynolds does not make oath to the fact that he was then the secretary of the corporation, but merely recites the fact in the preliminary statement which does not purport to have been made under oath. The statute makes no provision as to who shall make the affidavit when a corporation is a party to a chattel mortgage and it does not require the person who makes it for the corporation to declare on oath his official position or relation. We think it is clearly sufficient if he declares it in the introductory statement describing the persons who make the affidavit. On the principle contended for by the defendant, it would be necessary for Scales and Halfhill to declare on oath that they are the mortgagors. True, the identity of names raises a disputable *247
presumption to that effect, but it is mere evidence not having the sanction of an oath. The declaration, signed by Reynolds, that he is the secretary of the corporation mortgagee is a similar degree of proof and is sufficient to satisfy the law in this particular. (See Modesto Bank v. Owens,
For these reasons we are of the opinion that if the defendant had been acting under a valid execution he could not have lawfully levied upon all the property without previous payment of the mortgage debt and that he was acting without authority in making the levy upon an execution not supported by any judgment.
The judgment is reversed.
Angellotti, J., Sloss, J., and Lorigan, J., concurred.
Rehearing denied.
Beatty, C.J., dissented from the order denying a rehearing.