Wellman v. English

Sanderson, J., delivered the opinion of the Court. First—We do not understand that a plaintiff in an action under Title VI., Chapter 2, in relation to the claim and delivery of personal property, is required, in order to maintain the action for a delivery, to take steps to secure the immediate delivery of the property, by making the affidavit and giving the undertaking required for that purpose. We understand that it is the privilege of the plaintiff to claim the delivery of the property at any time before the filing of the answer, but that it is not compulsory upon him to do so. The mere circumstance that he is required to claim the immediate delivery before the answer is filed, or not at all, seems conclusive that, whether he avails himself of that remedy or not, does not affect the question of ultimate relief. But if the question, notwithstanding the foregoing consideration, be doubtful, it is certainly put to rest by the further circum [584] stance that the defendant may retain the property, if he elects to do so; and, also, by the character of the verdict. In declaring what the verdict shall be, the statute, in terms, provides for a case where the plaintiff has not claimed a delivery before the filing of the answer. (Pr. Act, Sec. 177.) Second—The point that in an action against the Sheriff for property tortiously taken by him under an attachment or execution against some other person, the plaintiff must allego and prove a demand for its delivery prior to the commencement of the action, is not well taken. It was so declared in Ledley v. Hays (1 Cal. 160), and all the cases since then to the contrary, if any, have been overruled in Boulware v. Craddock (30 Cal. 190.) See, also, Sargent v. Sturm (23 Cal. 359), which is a case on all fours with this. If a Sheriff takes property which does not belong to the defendant in the execution, he takes it tortiously, although it be in the possession of the defendant in the execution at the time he takes it. Judgment and order affirmed. Hr. Justice Sprague expressed no opinion.