Johnson v. Lamping

Citations

• 34 Cal. 293

Syllabus

<p>Debtor and Tortfeasor.—L. recovered judgment against R. Co., from which R. Co. appealed to the Supreme Court, where the judgment was modified by reducing the rate of interest and striking out the requirement for its payment in gold coin. ¡No stay of proceedings, pending said appeal, having been obtained, ¡L. caused the mining claims of R. Co. to be sold under execution, issued on said judgment before said reversal, and became the purchaser for the amount of his judgment—he paying to the Sheriff his legal fees, and giving receipt on his judgment for the amount of his bid. Within six months thereafter, L. received from the working of said claims seven thousand dollars over the expenses for said work : held, first, on the assumption that said modification of judgment per se rendered said sale void, that the working of said claims by L. was a trespass, and he a tortfeasor, and not a debtor of R. Co. in the sense of the statute in relation to attachments, (Pr. Act, Sec. 126 ;) second, that while R. Co., at their option, could hold L. responsible as tortfeasor, or, by waiving the tort, treat him as their debtor, yet until the tort should be so waived by R. Co., neither they nor their creditors could treat L. as a debtor for said amount realized by him from working said claims.</p> <p>Idem.—Where, in such a case, R. Co. had ceased to work said claims before said sale, and immediately after it had been made entered into a contract with L., by which 'it was stipulated that R. Co. should work the claims during the time allowed for redemption, and pay the gross proceeds to L., who should pay the expenses of said working and pay wages to R. Co. for said working, whether the claims should yield a profit or not, and under said contract ¡G. received from R. Co. gold dust of the value of said seven thousand dollars over the expenses of such work : held, that such contract was valid, and said gold dust became the property of ¡L., and thereby he became neither debtor nor tortfeaso