Sexey v. Adkinson

Citations

• 34 Cal. 346

Syllabus

<p>Proof of Debt—When Necessary to justify Levy under Attachment or Execution.—In the suit of H. against C., A., as Sheriff, under a writ of attachment regularly issued in said action, seized, in the hands of S., personal property as the property of C. S. sued A. to recover said property, alleging ownership, and on the trial deraigned title through a sale to him from C., made prior to said seizure under attachment. A., in defense, pleaded said attachment suit and proceedings, and that said sale was fraudulent and void as against E. On the trial, A. introduced in evidence the complaint, summons, answer, affidavit, and undertaking for attachment, and the writ of attachment in said suit of E. against 0., but introduced no judgment therein or other evidence of the existence of the debt demanded in said complaint. Held, that the admission of said evidence under the objections of S. was proper, but that said attachment suit and proceedings were unavailable to A. as a defense to said action, in the absence of proof of a judgment therein, or of the existence of said debt.</p> <p>IüE3r.—The transfer of said property by said sale from 0. to S., even if fraudulent, was good as against all the world except creditors ; and even a creditor at large could not attack it.</p> <p>Idem.—When property is taken from the possession of the defendant by the officer levying thereon, it is sufficient to introduce in evidence the attachment or execution under which the levy is made ; hut when found in the possession of a stranger claiming title to the property so seized, it is likewise necessary to show a judgment, or prove the debt for which judgment is demanded in the attachment suit.</p>