Norcross v. Nunan , 61 Cal. 640 ( 1882 )

Myrick, J.:

This was an action for the recovery of personal property or its value, and for damages for its detention. But the plaintiff did not claim the delivery of the property to him before judgment. The defendant, Sheriff, justified under a writ of attachment and an execution.

1. Conceding that the Court below was correct in refusing to admit the writ of attachment in evidence because of the defect in the affidavit in stating that the amount claimed was due on a contract, without stating whether it was due upon either an express or 'implied contract, yet the defendant was entitled to have the execution in evidence upon which to base the defense that the transfer of the property from Gordon and Cory to plaintiff was fraudulent and void as to creditors. We think the evidence of the plaintiff clearly shows that the transfer was void as to creditors. (C. C., § 3446.) 'The Sheriff did not take the property from the possession of plaintiff; and even if there were irregularities in the proceedings for the judgment, such irregularities would not prevent the officer from justifying under an execution valid on its face. There is nothing on the face of the execution to show its invalidity. The rule is fully stated in Freeman on Executions, Section 101:

“ The Sheriff may limit his inquiries to an inspection of the writ. If the writ is issued by the proper officer, in due form, and appears to proceed from a Court- competent to exercise jurisdiction over the subject-matter of the suit; to grant the relief granted and enforce it by the writ issued; and there is nothing on the face of the writ showing a want of jurisdiction over the person of the defendant, or showing the writ to be clearly illegal from some other cause, the officer may safely proceed. That from some cause, not shown in the writ, the judgment or writ was irregular or void, will be of no consequence to him. He can justify upon producing the writ. It is therefore immaterial to him that the judgment does not correspond to the writ or that there ever was any such judgment in existence.”

The same rule applies to a Court of limited jurisdiction, if the subject-matter of the suit is within that jurisdiction, and nothing appears on the face of the process to show that the person was not also within it. (Savacool v. Boughton, 5 Wend. 170; S. C., 21 Am. Dec. 181.)

2. The Court instructed the jury to render a verdict for plaintiff for the property, and to find the value of the property and the damages. The jury found the value of the property and the damages, and returned a verdict for the plaintiff for such value and damages, but did not find for the plaintiff for the property. This was error. Under this verdict and the judgment thereon the plaintiff could not have elected to deliver the property.

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

Morrison, C. J., concurred.