Byrnes v. Moore , 93 Cal. 393 ( 1892 )

Foote, C.

This action of claim and delivery was brought against a sheriff who had levied upon certain personal property under a writ of attachment at the suit of certain parties who were the creditors of the seller of the property to the plaintiffs.

The court below granted. a nonsuit, apparently upon the ground that the debtor of the attachment creditors had not made a sale of the property to the plaintiffs which would satisfy the provisions of section 3340 of the Civil Code, because the transfer of the property was not accompanied by an immediate delivery and followed by an actual and continued change of possession.

Every case of the kind here involved has its own peculiar features, and must be determined on the particular facts which surround the given transaction or transfer.

Carefully examining all the evidence in this case, we are of opinion that it was of such a character as not to render it clear, as matter of law, that no evidence existed tending to show a transfer which would be good under the statute.

Therefore, as it seems to us, the question was one of fact which should have been permitted to go to the jury for determination.

We therefore advise that the judgment and order denying a new trial be reversed.

Vancliee, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are reversed.

Hearing in Bank denied.