Hawkins v. Roberts

         After the service of the attachments the Sheriff delivered the property to Wise and made him his keeper. Under these circumstances a subsequent attaching creditor could have seized the property. But it is contended by the appellant that the complaint in this case proceeds upon the theory that Roberts was in possession of the property. Admit it, and they ask, how can you recover on the allegation of our possession when your proof is that we were not in possession? There is no inconsistency whatever. We found Mr. Wise on a certain day in possession of our personal property, which we wanted and demanded. Mr. Wise said Mr. Roberts has some sort of claim to this property, and has asked me to keep it for him. We sue Mr. Roberts for the recovery of the property. He replies that he is the Sheriff of Solano County, and only claims to hold our property by virtue of certain writs running against the property of Wise. We come now and show that his pretended levy is illegal and utterly void, and ask to take our own. We are not dealing with Mr. Roberts as Sheriff of Solano County, but as an individual.

         OPINION          By the Court:

         It may be that if after a levy of a writ of attachment upon personal property by taking it into possession the officer permit the defendant in attachment to resume its possession, the levy would be thereby defeated as against execution or attachment creditors subsequently levying thereon, or against a subsequent purchaser from the defendant in attachment, who, upon such purchase, takes the possession thereof. The cases of Dutertre v. Driard , 7 Cal. 549, and Sanford v. Boring , 12 id. 539, assert that principle. But the question in those cases arose between the creditors claiming under the first attachment, upon which the possession had been relinquished, and subsequent attachment or execution creditors, who had caused it to be seized after its possession under the former attachments had been lost. In this case, however, the contest arises between a prior vendee of the defendant in attachment, who did not take the possession, and the Sheriff, who, finding the goods still in the possession of the plaintiff's vendor, levied an attachment thereon, and kept possession thereunder for several weeks, and then permitted the property to go back into the hands of the plaintiff's vendor, as the Sheriff's keeper. The only question made against the validity of the Sheriff's levy is that he did not keep the possession of the property.

         But, whether he had kept a continuous possession or not, the case of the plaintiff concedes that at and before the time of bringing the action the Sheriff was in the actual possession of the property, and had refused to deliver it to the plaintiff, upon demand made upon him for that purpose. If the defendant was in possession, as alleged in the complaint, then the attachment under which he justified was a defense to the action--if he was not in possession, then the action of replevin in the detinet cannot be supported against him. The plaintiff cannot treat him as in possession for the purpose of suing him, and then recover a judgment against him on the ground that after all he was not in possession.

         Judgment and order denying new trial reversed, and cause remanded for a new trial.