Darville v. Mayhall

COOPER, C. This action was brought to recover of defendant C. R. Mayhall and the other defendants, who are sureties on his official bond as constable, the value of certain personal property described in the complaint, and which property is alleged to have been wrongfully taken from the possession of plaintiff by defendant, as constable, under a writ of execution against one S. W. Darville. After trial findings were filed and *618 judgment entered for plaintiff. Defendants have appealed from the judgment on the judgment-roll and a bill of exceptions. Defendants’ argument is directed to the contention that the plaintiff is the wife of one S. W. Darville, and that the property was transferred to her by her said husband, and it is claimed that such transfer was not accompanied by an immediate delivery, nor followed by an actual and continued change-of possession, and for this reason the transfer is fraudulent and void. The defendants have not alleged or proven that C. E. Mayhall, in taking the property, represented any creditor. It is not shown that any judgment existed, nor that an execution was ever issued upon any judgment. The property was in the possession of plaintiff, who was a stranger to the writ of execution. In order for an officer to justify the taking of property under an execution against another who is a stranger to the writ, or to show that the transfer of the property by the execution debtor was fraudulent and void as to the execution creditor, he must prove not only the issuing of the execution, the levy, and that he was a creditor, but also the rendition of a judgment upon his debt, and that the execution was issued upon the judgment. (Thornburgh v. Hand, 7 Cal. 562; Paige v. O’Neal, 12 Cal. 495; Bickerstaff v. Doub, 19 Cal. 112; 79 Am. Dec. 204; Leszinsky v. White, 45 Cal. 279; Kane v. Desmond, 63 Cal. 465.) The answer contains only a general denial. Ho attempt at justification is made therein. Hot only this, but there is no proof of any indebtedness, of any judgment, nor of the issuing of any execution upon any judgment. The bill of exceptions shows that it was admitted that the property was seized by virtue of an execution issued out of the justice’s court of his said township in an action entitled S. W. Darville v. Gilbert Middagh.” This does not show any indebtedness nor any judgment. The defendant, therefore, cannot question the transfer to plaintiff, nor its validity in any respect. It follows that the judgment should be affirmed. Haynes, C., and Smith, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Temple, J., Henshaw, J.