Summary
In Babe v. Coyne, 53 Cal. 261, the writ under which a sheriff had made a levy, and the affidavit on which it was issued, were introduced in evidence, and this court held that it made out a prima facie case of justification of the seizure of the property, notwithstanding the affidavit was originally insufficient, and was amended subsequent to the seizure.
Summary of this case from Brichman v. RossOpinion
Appeal from the District Court of the Eighteenth Judicial District, San Diego County.
The action was replevin, and the Sheriff justified under a writ of attachment, in the suit of Patrick v. Horton. At the trial, the defendant offered in evidence the papers in that suit. Judgment was rendered for the defendant, and the plaintiff appealed.
COUNSEL:
M. A. Luce and C. H. Robinson, for Appellant.
Chase & Leach, for Respondent.
OPINION THE COURT
When the record and proceedings in the case of Patrick v. Horton, including the papers in the attachment proceedings in that case, were offered in evidence, the plaintiff objected, on the ground, among others, that the affidavit on which the attachment was issued was insufficient; and that the amended affidavit, filed by leave of the Court, was filed after the levy of the attachment, and after the commencement of this action. The Court found, and for the purposes of this question it must be taken to be true, that the goods when attached were in the possession of Horton, and were attached as his property. In the proceedings in the action of Patrick v. Horton, the Court denied the motion of Horton to dissolve the attachment, and gave Patrick leave to file an amended affidavit for an attachment, as of the date of the original affidavit. These orders and affidavit were valid as against Horton, unless set aside in direct proceedings for that purpose. The property in controversy, when seized, being in Horton's possession, the Sheriff would make out a prima facie case of justification of the seizure of the property as the property of Horton by the production of the writ of attachment, and the proceedings and affidavit above mentioned. The Sheriff was entitled to show such justification, irrespective of any questions respecting the sale to the plaintiff's lessor, as being, for any reason, fraudulent or void.
Judgment affirmed.