Matteucci v. Whelan

Citations

• 123 Cal. 312
• 55 P. 990
• 1899 Cal. LEXIS 1069

Syllabus

<p>Replevin oe Attached Property—Motion eor Judgment upon Pleadings—Amendment oe Answer—Denial oe Title.—In an action of replevin to recover property attached toy the sheriff as the property of another person, under whom plaintiffs claim title, a motion for judgment upon the pleadings for want of a sufficient denial of plaintiff’s title in the original answer may toe obviated by the allowance of an amendment to the answer, in the discretion of the court, so as to make an unobjectionable denial thereof; and upon appeal, it is not necessary to determine whether the original answer sufficiently denied plaintiff’s ownership or right to the possession of. the property, at the ; time-of the commencement of the action, if the denial in the amended answer is clearly sufficient.</p> <p>Id.—Execution Sale to Plaintiffs—Change of Possession—Construction of Code—Invalid Attachment.—Where the goods attached by the sheriff, and replevied by the plaintiffs, had been previously sold to the plaintiffs as third parties, under execution against the attachment debtor, the rule of section 3440 of the Civil Code, requiring an actual and continued change of possession to the purchasers as against other creditors of the debtor, does not apply, and the mere fact that the purchasers did not choose to remove the property from the control of the debtor, or afterward allowed him to resume control thereof as bailee, does not render the sale constructively fraudulent, so as to authorize an attachment thereof by other creditors of the debtor, as his property, and such an attachment is invalid.</p>