The Federal Reporter with Key-Number Annotations, Volume 192: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, February-March, 1912. Page: 74
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192 FEDERAL REPORTER
here, for the reason, as asserted, that the statute of California has
entirely taken away the common-law remedy for such a trespass and
relegated plaintiff to a purely statutory remedy against the officer
making the seizure, and that plaintiff is therefore pursuing the wrong
party. The provision of the statute assumed to have this effect is
section 689 of the Code of Civil Procedure, relating to executions,
which is made applicable to attachments, and which provides that,
if the property levied upon be claimed by a third person, he shall
make a verified demand therefor upon the sheriff in the manner
there specified, and that "no claim to such property is valid against
the sheriff, or shall be received, or be notice of any rights, unless
made as above provided."
But it is sufficient to say that defendant has wholly misconceived
the purpose and effect of this provision. It was intended, as its lan-
guage imports, for the benefit of the sheriff, to protect him against
the consequences of proceeding in good faith to hold or sell seized
property as that of the defendant in the attachment or execution, and
thereafter, when too late to restore it to the true owner, find himself
liable to the latter for its conversion, and the provision is not to be
construed as in any wise limiting the common-law right of the owner
as against a wrongdoer, such as the defendant here, participating in
the trespass. Paden v. Goldbaum, 37 Pac. 759, 761;1 Kellogg v.
Burr, 126 Cal. 38, 42, 58 Pac. 306; Brenot v. Robinson, 108 Cal. 143,
145, 41 Pac. 37; Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95. In fact,
in Paden v. Goldbaum, supra, the question is left in doubt by failing
to decide whether this statute would be any protection to the sheriff
in an action such as the present; the court there saying:
"Whether the failure of a plaintiff to serve such verified claim would be
a defense to an action for damages for the conversion of the property, or
only to an action in claim and delivery to recover possession of the property
from the officer (a question discussed by counsel), need not be considered
here, in view of the conclusion reached upon the question of pleading."
This disposes of the first objection to the complaint.
[3] The next assignment of insufficiency is equally untenable. It
is that the facts alleged make no case within the jurisdiction of this
court, and this is predicated on the theory that the rule of damages
for the wrongful taking of property, under circumstances like those
alleged, is solely compensation for the actual loss sustained; and,
as the value of the property taken is alleged at a figure much below
the amount required to invoke the jurisdiction of this court, the ac-
tion cannot be maintained, notwithstanding the damages are alleged
in an amount more than sufficient to give the court jurisdiction. In
other words, that the court can say from the face of the pleading
that the cause of action stated does not really involve a controversy
in an amount sufficient to vest cognizance in this court. This conten-
tion ignores the feature of oppression and malice alleged in the
pleading. That element, if established, augments the rule of damages
as stated by defendant, and authorizes the jury, within their discre-
1 Reported in full in the Pacific Reporter; reported as a memorandum de-
cision without opinion in 104 Cal xviii.
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The Federal Reporter with Key-Number Annotations, Volume 192: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, February-March, 1912., legislative document, 1912; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38238/m1/88/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.