Sexey v. Adkinson

By the Court, Sawyer, J.: Action to recover personal property. Defense that the chattels in question were the property of Crane & Co., and were seized as such by the defendant, as Sheriff of Yuba County, upon a writ of attachment at the suit of Hutchings v. Grane $ Go. The plaintiff claimed by virtue of a prior sale from Crane & Co., and claimed to be in the actual possession at the time of the seizure by defendant. There is no pretense that there was any bad faith, or fraud in fact, in the transfer from Crane & Co. to plaintiff, but it is claimed that there was no actual and continued change of possession, and that the transfer was, therefore, void under the Statute of Frauds. Whether there was an actual and continued change of possession or not, was the principal question of fact to which the evidence was directed. The defendant introduced the complaint, summons, answer, affidavit and undertaking for attachment, and the writ of attachment, in the attachment suit, but introduced no judgment or other evidence of the existence of the debt, upon which the attachment issued. The plaintiff objected to their introduction on various grounds, as they were severally introduced, and all the objections were overruled and the evidence admitted. We think the objections all untenable. It will be seen, in another part of this opinion, that other evidence was necessary to make the record of the proceedings in the attachment suit available. Under the issues, the defense could not be made out without these proceedings. They were therefore admissible on that part of the issue, which they tended to prove, although there was a failure of proof on another branch of the issue. At the conclusion of the testimony the Court, at the request of the defendant, gave to the jury the following instruction, numbered ninth: [350] “ The affidavit, attachment and undertaking in the case of S. G. Hutchings v. H. G. Grane Go., offered and admitted in evidence for the defendant, are sufficient evidence of the indebtedness of H. C. Crane & Co. to said Hutchings.” If it was necessary to prove the indebtedness, this proposition cannot be maintained. The plaintiff was a stranger to the proceedings. The fact that Hutchings claimed money to be due from Crane & Co. to himself, and commenced a suit, and even obtained an attachment, can be no evidence, as against a stranger, that there was, in fact, anything due. These proceedings are but acts of one party to the suit, and the ministerial act of the Clerk of the Court. The transfer of the property from Crane & Co. to the plaintiff was good against all the world except creditors, and even a creditor at large could not attack it. (Noble v. Holmes, 5 Hill, 194; Thornburg v. Hand, 7 Cal. 565.) A fortiori, one who is not a creditor cannot attack it. It would seem to follow necessarily, that a party seeking to attack it must show that he is in fact a creditor. And so the authorities hold. When the property is taken from the possession of the defendant, it seems to be sufficient to introduce the attachment, or execution. But when found in the possession of a stranger claiming title, it is necessary to show a judgment or prove the debt. It was so held in Damon v. Bryant, 2 Pick. 412. This was an action for trespass for taking goods “ from the possession of a third party.” The officer justified under a writ of attachment, but did not prove the debt. The judgment was reversed on this ground. The Court say, that “ a judgment must be shown, when the officer justifies under an execution, or a debt, if under attachment.” In Thornburg v. Hand it was insisted, that “ it was only necessary to show the writ and prove the debt, thereby establishing the relation of creditor,” thus conceding the necessity of proving the debt. (7 Cal. 561-65.) The same principle is recognized in Mamlock v. White, 20 Cal. 600. Mr. Justice Norton says : “ Proof of the debt would not be necessary in order to jus [351] tify the Sheriff in seizing the property, if in the possession of Ephraim, the attachment debtor, and was only necessary in this case in order to enable the defendant to place himself in a position to attack the sale to the plaintiff, as being void against creditors.” Upon the same point Mr. Justice Balcom, in Rinchey v. Stryker, 28 N. Y. 52, remarks: “ Of course the creditor or officer must first prove the existence of the debt for which the attachment was issued, when the debt has not been established by a judgment against the debtor. "When that is done, the judgment proves it.” (See, also, Janson v. Acker, 23 Wend. 480.) It is true, that there is a remark in Walker v. Woods, 15 Cal. 69, leading to a contrary conclusion, but it was unnecessary to the decision. In that case there was a judgment and execution, and not merely a suit commenced; and we know of no principle upon which such a conclusion can be sustained. In this case, upon the state of the evidence, as to the possession, at the time of the seizure, we think the instruction erroneous. The attachment proceedings were admissible in evidence, however, so far as they went, because they were necessary under the issues formed; but it was necessary to introduce further evidence to prove the existence of the debt. The sixth instruction given at defendant’s request, when given as a distinct independent instruction to the jury, is rather broad and sweeping, and we think liable to create a false impression on the minds of the jury. We are unable to perceive any substantial objection to the first instruction asked by the plaintiff and refused by the Court. It seems to us to present, in language not liable to be misapprehended, a correct legal proposition relevant to the case, and in view of some of the instructions given at the request of the defendant, highly proper to be given. We think the Court erred in refusing it. In consequence of the errors in giving the ninth instruction asked by defendant, and refusing the first asked by the plaintiff, we feel [352] compelled to reverse the judgment and order denying a new trial, and it is so ordered.