Schumacher v. Connolly, No. 9711

No. 9711 | Cal. | Mar 20, 1888

Lead Opinion

Foote, C.

—This was an action for damages against Connolly, as sheriff, for the alleged wrongful seizure of the plaintiff's property, under writ of attachment against one R. White. The cause was tried by a jury.

The plaintiff had a verdict for six hundred dollars. A motion for a new trial was duly made, and the court below ordered “that said motion be granted unless the plaintiff shall consent in writing to a reduction of the judgment herein from the sum of six hundred dollars to the sum of three hundred dollars, in which case the judgment will be modified accordingly, and the said motion for a new trial denied.”

The plaintiff consented to have the judgment modified as required by the court, and from the judgment thus made and given, and the order denying a new trial, this appeal is taken.

The point is made by the appellant that the judgment should be reversed because the evidence shows that there was no immediate transfer and actual and continued change of possession of the property attached, either from White, the defendant in the attachment suit, to one Seligman, who first bought the goods, or to his vendee, Schumacher, the present plaintiff. It was also claimed that the sale was fraudulent. We perceive nothing in the record to warrant us in sustaining the last contention.

The evidence sufficiently shows an immediate transfer, and an actual and continued change of possession of the property attached from White, the defendant in attachment, to Seligman, and from him to the plaintiff.

There was a conflict in the evidence as to the value of the property attached, and the modification of the judgment under the order of the trial court should stand.

We advise that the judgment and order appealed from be affirmed.

Hayne, 0., and Belcher, C. 0., concurred.

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Concurrence Opinion

The Court.

—For reasons given in the foregoing opin-

ion, the judgment and order are affirmed.