Pearce v. Boggs

Citations

• 99 Cal. 340
• 33 P. 906
• 1893 Cal. LEXIS 665

Syllabus

<p>New Trial—Draft of Statement—Lack of Signature—Acknowledgment of • Service—Waiver of Objection.—An objection by the attorneys for the plaintiff to the settlement of the defendant’s statement on motion for a new trial, on the ground that the proposed statement had not been signed by the defendant or his attorneys, is without merit, where it is shown on behalf of the defendant that the document had been delivered by the attorneys for the defendant to the paintiff’s attorney, who acknowledged receipt thereon from the defendant’s attorneys of the “original draft of statement on motion for new trial,” and failed to object for want of a signature until after the time had elapsed for service of the draft of the statement.</p> <p>Sales —Delivery—Attachment—Replevin—Instruction—“ Wrongful ” Prevention of Possession—Question of Law. — In an action of claim and delivery, where it appeared that the plaintiff purchased two mares from the owner thereof, but the custodian of the mares refused to give them up on the ground that an employee of the owner, who placed them in his care with the owner’s consent, told him not to deliver them to any one except on his order, and subsequently snch employee removed them to his own place where he attached them in a suit against their owner, and they were sold to the defendant under execution, an instruction to the jury that if they believed from the evidence that if the plaintiff bought the mares in good faith from their owner, and was prevented from getting possession thereof by the wrongful act of the attaching creditor, they should find for the plaintiff, is erroneous in leaving to the jury the determination of the question of law as to whether any act of the attaching creditor by which the plaintiff had been prevented from getting possession of the mares was “wrongful.”</p> <p>Id.—Change of Possession—Right of Possession—Improper Instruction — In such case an instruction to the jury that “ what constitutes a delivery of personal propert