L. A. GREEN, Respondent, v. JOHN BURR, Sheriff, Appellant, 131 Cal. 236

GRAY, C. The defendant appeals from an order denying a new trial. The action is to recover the value of the furniture and contents of a certain restaurant in the city of Los Angeles alleged to have been wrongfully converted by defendant. The defendant denies plaintiff’s title and justifies the taking, as sheriff, under a writ of attachment issued in a cause entitled G. C. de Garmo v. George F. Harvat, and alleges that the defendant in that action is the owner of the property in controversy.

The appellant ’Contends that the findings in favor of plaintiff as to the ownership of the property are not sustained by the evidence. The evidence shows that the property in dispute belonged to a certain restaurant company of which Harvat was a creditor in a small amount. He assigned his claim to one Clark, who brought suit thereon and attached the said property.

Harvat then fearing the restaurant owners would be thrown into insolvency'', desired to purchase the property in controversy for enough to pay the other creditors of the restaurant fifty per cent of their claims, which they had agreed to accept in full satisfaction thereof. Bor lack of funds Harvat was unabl'e to do this, and so through his assignee, Clark, who seems to have been a mere agent in the matter, he applied to the plaintiff herein and she consented to and did put up the money, about five hundred dollars, to pay the creditors and took a bill of sale of the property from the owners of the restaurant.

The plaintiff then gave Harvat a fifteen days’ option to purchase the property from her for six hundred dollars. The constable who had the property under attachment and Clark, the plaintiff in the attachment suit, then placed said property in the possession of Harvat as the agent of the plaintiff, and while the property was so in the possession of Harvat and before the expiration of the fifteen days’ option the defendant, as sheriff, seized the goods as the property of Harvat in an attachment suit brought against him by one of his creditors.

It further appears from the evidence that Clark had previously been acting for the plaintiff in the investment of her money, and she gave him special authority as her agent to purchase the property in question from the restaurant company and look after her interests in the matter. At the time of the seizure of the property by defendant, Harvat was running the restaurant and was in possession of the property in litigation herein. The creditors of the restaurant company were settled with, and they are mating no claim with reference to the property.

The foregoing facts were proven -without substantial conflict in the testimony, except that there was evidence tending to show that Harvat while in possession had made some declarations of his proprietorship in said property. On the evidence as presented the court was fully warranted in finding that plaintiff was the owner of the property at the time it was seized Ity defendant.

There was nothing tending to show that Harvat, the debtor in the attachment suit, was the owner of the property except his own declarations to that effect, which seem to have been received in evidence without objection made thereto; as against the other undisputed facts showing that plaintiff had bought and paid for the property, these declarations could have little weight. The remaining contention of appellant is that the court erred in refusing to allow the defendant to amend his answer to conform to the proofs.

It appears from the record that the request to be permitted to amend the answer was not made until after the case was submitted to the court for decision; how long after such submission, or whether the request to amend was made before the case was decided, does not appear. But aside from this, it does not appear that any evidence was excluded at the trial on account of any defect in the answer. Hor can we see how any prejudice or injury accrued to defendant for want of anything in his answer, or how his situation might be bettered if his answer were in any way changed.

The defendant appears to have lost his case for want of evidence, and not on account of any defect in his answer. The order appealed from should be affirmed. Haynes, €., and Smith, C., concurred. For the reasons given in the foregoing opinion the order appealed from is affirmed. Henshav; J., McFarland, J., Temple, J.