Summary
In Brown v. Cline, 109 Cal. 156 [41 P. 862], it was held that an order granting a new trial on condition that the moving party pay the costs of his adversary within a stated time, is to be construed as an order denying a new trial upon noncompliance with the condition; and, after the expiration of the time limited for complying with the condition, the court has no power to make a further order granting an unconditional new trial.
Summary of this case from Chapman v. Municipal CourtOpinion
Department Two
Appeal from an order of the Superior Court of Los Angeles County granting a new trial. Waldo M. York, Judge.
COUNSEL:
C. W. Pendleton, and Edwin A. Meserve, for Appellant.
Walter F. Haas, and A. C. Brodersen, for Respondent.
JUDGES: Belcher, J. Haynes, C., and Searls, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
BELCHER, Judge
This action was brought to recover the possession or value of certain personal property, with damages, alleged to have been owned by the plaintiff and to ha ve been wrongfully taken from his possession [41 P. 863] by the defendant in October, 1893.
The answer denied that plaintiff was the owner or in possession of the property described in the complaint, or any part thereof, and alleged that the said property was owned by and in the possession of one W. H. Cooper. The answer further alleged that defendant was the sheriff of Los Angeles county, and that, as such sheriff, he took the said property into his possession as the property of said W. H. Cooper, on October 11, 1893, under a writ of attachment duly issued out of the superior court of Los Angeles county, and to him directed and delivered, in an action commenced in said court against said Cooper; and that he held the said property as such officer under said writ, and not otherwise, up to October 17, 1893, when the same was taken from him by the coroner of the county, in his official capacity, under and in pursuance of the demand of plaintiff, and upon the proceedings had, and that the said coroner and the plaintiff ever since the date last mentioned have been and now are in possession of all of said property. And the prayer was for judgment that the plaintiff be compelled to return the said property to defendant, or, if the same could not be returned, then for the value thereof and damages.
The case was tried by the court without a jury, and the findings were that on the eleventh day of October, 1893, plaintiff was the owner and in possession of the personal property described in the complaint, and that on that day defendant, without plaintiff's consent and wrongfully, took said personal property from the possession of plaintiff; that defendant was the sheriff of Los Angeles county, and took the property under and by virtue of a writ of attachment, as stated in the answer, and that, upon the commencement of this action and upon proper proceedings had, the coroner of the county took said property from defendant and held the same until the 20th of October, when he delivered the same to the plaintiff; and that by reason of the loss during such time of the use thereof plaintiff had been damaged in the sum of one hundred and twenty-five dollars. Judgment was accordingly entered in favor of the plaintiff for the sum of one hundred and twenty-five dollars as damages, together with his costs amounting to eighty-five dollars and fifty-five cents.
The judgment was entered March 2, 1894, and on March 10th defendant filed his notice of intention to move for a new trial upon the grounds: 1. That the evidence was insufficient to justify the decision of the court; 2. That the decision was contrary to law; and 3. Error in law occurring at the trial and excepted to by the defendant.
The motion was made on a statement of the case, and on June 15, 1894, the court made the following order: "It is ordered that defendant's motion for new trial be, and the same hereby is, granted upon the payment by defendant to plaintiff, or his attorneys, of the costs taxed herein, to wit: Eighty-five dollars and fifty-five cents, within five days after notice hereof. It is ordered that if said condition be complied with, that thereupon the judgment entered herein shall be vacated and said cause placed upon the calendar of this court for a new trial, and that if said condition be not complied with within said five days, then at the expiration of that time said motion for a new trial shall be denied." On September 17, 1894, the defendant moved the court "for a final order granting his motion for a new trial," and the same was thereupon granted. From this last order the plaintiff appeals.
1. It was clearly proved at the trial that the plaintiff purchased the property in question of W. H. Cooper in good faith, and paid for it its full value; and the principal question was as to whether or not the transfer was accompanied by an immediate delivery and followed by an actual and continued change of possession of the things transferred, as required by section 3440 of the Civil Code. There was some little conflict in the evidence, but that introduced by the plaintiff was amply sufficient to sustain his theory as to the transaction and to establish his right to recover.
2. The transfer was unquestionably good as against all the world, except creditors or a bona fide purchaser; and to justify the taking of the property by defendant it was necessary for him to prove that Maclay, the plaintiff in the attachment suit, was a creditor of Cooper at the time of the attachment. The rule is that, when property is found in the possession of a stranger to the suit claiming title thereto, it is necessary to show a judgment or prove the debt for which judgment is demanded. And to accomplish that end the papers in the attachment suit are not sufficient. (Sexey v. Adkinson , 34 Cal. 346; 91 Am. Dec. 698; Banning v. Marleau , 101 Cal. 238.) Here there was no sufficient evidence that Maclay was a creditor of Cooper, and, if a finding that he was such had been made, it would not have been justified by the evidence.
3. The rulings of the court, specified in the statement as errors of law, are not urged by respondent, and, in our opinion, they were proper, and furnish no ground of complaint.
4. The order of June 15, 1894, granting the defendant's motion for a new trial upon condition that he pay to the plaintiff or his attorneys within five days the sum of eighty-five dollars and fifty-five cents taxed as costs in the action, was never complied with by defendant. The money was not paid to the plaintiff or to either of his attorneys within five days, or at all. It is claimed, however, that four days after the order was made one of the defendant's attorneys paid the money to the county clerk for the use of the plaintiff, and that he was justified in so doing. But the affidavits read at the hearing of the motion for a "final order" on September 17th do not in our opinion show that the payment to the county clerk was authorized, or a compliance with the order of June 15th. The case must be treated, therefore, [41 P. 864] as if no payment or attempted payment had been made, and as if at the end of the five days the motion for new trial had been denied. (Garoutte v. Haley , 104 Cal. 497.)
This being so the court had no power to make the order of September 17th. (Odd Fellows' Sav. Bank v. Deuprey , 66 Cal. 168; Dorland v. Cunningham , 66 Cal. 484; Greehn v. Marker , 67 Cal. 364.)
The order appealed from should be reversed.
For the reasons given in the foregoing opinion the order appealed from is reversed.