
    [Civ. No. 2972.
    Third Appellate District.
    October 19, 1925.]
    PACIFIC SOUTHWEST TRUST AND SAVINGS BANK (a Corporation), Respondent, v. V. TULLEDO, Defendant; J. V. FERNANDES et al., Appellants.
    
       -Chattel Mortgage — Foreclosure — Error in Overruling Demurrer.—In this action to foreclose a chattel mortgage on livestock, while the demurrer of certain of the defendants may have been technically well taken, any error of the trial court in overruling said demurrer was cured by the provisions of section 4 y¡¡ of article VI of the constitution.
    
       Id.—Prior Claim and Delivery Action—Property in Custodia Legis—Waiver op Objections.—A judgment for the foreclosure of a chattel mortgage on certain livestock will not be reversed because of the pendency of an undetermined prior action of claim and delivery by two of the defendants against their codefendant in which action the sheriff took possession of the livestock and delivered same to the plaintiffs therein, where no request, either by pleading or otherwise, was ever made to the trial court to continue or delay the trial of the foreclosure action until after the action in claim and delivery had been heard and determined, and the question of ownership and title to the livestock was presented and litigated with all the parties present without any objection being made to the proceeding with the trial of the issues presented, and the testimony sufficiently supports the finding of the trial court as to the ownership of the livestock by the mortgagor.
    
      1. See 2 Cal. Jur. 1012.
    
      
       lb.—Parties—Exoneration of Sureties.—In such foreclosure action, as the mortgagor (who was the defendant in the prior claim and delivery action) was joined as a party defendant, the taking of the livestock from the other defendants (who were the plaintiffs in said prior claim and delivery action) would constitute an exoneration of the sureties in the claim and delivery action.
    
       Id.—Identity of Property—Ownership—Judgment.—Irrespective of whether the property taken under said claim and delivery proceedings was subject to execution in the foreclosure proceeding, the mortgagee possessed the right under his chattel mortgage to have foreclosure judgment entered covering the property therein mentioned, if the court, with all the parties before it claiming any interest therein, found the property in question belonged to the mortgagor at the date of the execution of the chattel mortgage.
    (1) 1 C. J., p. 101, n. 19; 4 0. J., p. 927, n. 42, p. 935, n. 70. (2) 1 C. J., p. 101, n. 19; 11 C. J., p. 726, n. 50 New. (3) 34 Cyc., p. 1579, n. 67. (4) 11 C. J., p. 730, n. 24 New.
    APPEAL from a judgment of the Superior Court of Tulare County. J. A. Allen, Judge.
    Affirmed.
    The facts are stated in the opinion of the court.
    Russell & Heid and G. W. Zartman for Appellants.
    D. E. Perkins and Feemster & Cleary for Respondent.
   PLUMMER, J.

Action to foreclose chattel mortgage on certain livestock. Plaintiff had judgihent and the defendants J. Y. Fernandes and Mary Y. Fernandes appeal. The record in this ease discloses that on or about the twentieth day of October, 1922', Mrs. M. Elma Foster, the owner of a certain ranch known as the Foster ranch in the county of Tulare and also of a certain band of cattle, leased said ranch to one Y. Tulledo and also sold the livestock thereon to the said Tulledo, and to secure the payment of the purchase price thereof took from said Y. Tulledo a chattel mortgage covering the" personal property then and there sold and delivered to the said Tulledo, and also a promissory note evidencing the amount remaining due on said purchase price. That thereafter, and on or about the fourteenth day of November, 1922, said note and chattel mortgage were assigned to the plaintiff herein, and on the fifteenth day of November, 1922, the chattel mortgage was recorded in the office of the county recorder of Tulare County, state of California, in the official records of said county. The property covered by the mortgage is set out and described therein and consisted of fifty-nine head of cattle and other personal property not involved herein. It also appears from the record that prior to the purchase by the defendant Tulledo from Mrs. Foster of the property herein referred to, the said Tulledo had, upon a conditional contract of sale, purchased from the defendant Fernandes certain other livestock consisting of a band of cattle of between forty and fifty head; that the said defendant Tulledo had this band of cattle on the Foster place, together with other cattle, numbering in all ninety-six head, a portion of which is alleged to have belonged to a brother of the defendant Tulledo. It further appears that after the transactions herein referred to were had, the cattle were further marked by the said Tulledo so as to render them more readily capable of being identified and some of them moved to different ranches.

The defendant Tulledo, not having complied with the terms and conditions of the conditional contract of sale by which he acquired possession of the cattle theretofore belonging to the defendants Fernandes, the said Fernandes took possession of a portion thereof, and on or about the - day of February, 1923, began an action in claim and delivery, and took possession of some forty head of the cattle hereinbefore referred to, claiming to be the owner thereof. Said cattle were taken under claim and delivery proceedings by the sheriff of the county of Tulare in an action against the defendant Y. Tulledo, and, no redelivery bond being executed by him, were by the sheriff, upon the faith of the sureties, executed by the defendants Fernandes, turned over to them. Thereafter, and on or about the sixth day ■ of April, 1923, the plaintiff began this action to foreclose the chattel mortgage hereinbefore referred to as having been executed by the defendant Tulledo to Mrs. M. Elma Foster and assigned to the plaintiff, joining as defendants in said action V. Tulledo and J. Y. and Mary Y. Fernandes. The complaint sets forth the execution and the assignment of the mortgage, the noncompliance with its terms by the defendant Tulledo, the mortgagor therein named, and also alleges that the defendants Fernandes claim some interest in said property. The defendants Fernandes demurred to the sufficiency of the plaintiff’s complaint, which being overruled, made answer to said complaint and, among other things, alleged ownership of the property in question and also set forth that on or about the twenty-ninth day of June, 1923, said defendants Fernandes and plaintiff began an action in the superior court of the county of Tulare to recover possession of fifty-six head of livestock; that upon the filing of said complaint the defendants furnished the undertaking required by law and instructed the sheriff of said county to take possession of said property; that possession thereof was taken by the sheriff, was thereafter delivered to the said Fernandes and that the said action in claim and delivery is still at issue in the superior court of said county and not yet tried. The defendants Fernandes alleged that they had no livestock in their possession included in said chattel mortgage and further set forth:

V That by reason of the want of knowledge as to what if any of said live stock taken by the said sheriff of said County of Tulare in the action of claim and delivery by these defendants against said Y. Tulledo, were included in said chattel mortgage set out in said amended complaint, these defendants cannot state how many if any of the live stock so taken by said sheriff were included in said chattel mortgage, and basing their denial on that ground deny that any of the live stock taken by the said sheriff of said county of Tulare, were live stock included in the mortgage executed to said M. Elma Foster.”

The court made findings in accordance with the prayer of plaintiff’s complaint, found that the property in question was the property sold by Mrs. M. Elma Foster to the defendant Tulledo and was not the property sold by the defendants Fernandes to the defendant Tulledo, and also made the following finding:

“That on or about January 2'9th, 1923, defendants J. V. Fernandes and Mary Y. Fernandes began an action against the said Y. Tulledo in the Superior Court of the said County of Tulare for the recovery of the possession of fifty-six head of live stock and other personal property owned by said J. Y. Fernandes and Mary Y. Fernandes, and on the filing of said complaint furnished to the Sheriff of said County of Tulare, the undertaking and affidavit required by law, together with instructions to said Sheriff to take the personal property mentioned in said complaint and affidavit from the possession of said defendant Y. Tulledo and pursuant to said instructions, said Sheriff, did, thereafter, take a portion of the personal property, to-wit, twenty-six head of heifers and calves he was instructed to take, and after retaining them for five days, said Sheriff delivered possession thereof to said plaintiffs in that action, and that said action is now at issue in said Superior Court of this County, and has not yet been tried.”

Upon this appeal it was argued by the appellants, first, that their demurrer should have been sustained, and, second, that the property was in custodia legis and therefore that any judgment of foreclosure and sale before the termination of the replevin suit was premature and contrary to law. While it may be true that the demurrer of the defendants Fernandes was technically well taken, we think that any error therein is cured by the provisions of section éy2 of article YI of the Constitution relative to any errors or matters of pleading which do not result in a miscarriage of justice. The testimony relative to the description of the property appeared to the trial court to be sufficient to enable anyone upon inquiry to ascertain and determine the property covered by the chattel mortgage, and we have not had pointed out to us any reason why the findings of the trial court in this particular should be disturbed.

The real controversy before the trial court was as to the ownership of the property, that is, whether the property covered by the chattel mortgage, twenty-six head of which were taken under claim and delivery proceedings by the defendants Fernandes, was the livestock sold to the defendant Tulledo by Mrs. Foster, or by the defendants Fernandes. We think the testimony sufficiently supports the finding of the court as to the ownership of the property and from whom title thereto was acquired by the defendant Tulledo The testimony of the defendant Tulledo, if believed by the trial court, was sufficient to support the court’s findings. It is clear and direct to the point that the property in controversy is the livestock obtained by him from Mrs. Foster and covered by the chattel mortgage. His testimony also accounts for the property acquired by him from the defendants Fernandes and what had become of the same. The real point in issue in this appeal is as to whether the judgment of foreclosure in this case was or was not premature. An examination of the record fails to disclose that request, either by pleading or otherwise, was ever made to the trial court to continue or delay the trial of the foreclosure action until after the action in claim and delivery had been heard and determined. This case also presents the differentiating feature from that of the other cases which have been called to our attention, in the fact that both the plaintiffs and the defendant in the claim and delivery action are made parties defendant in the foreclosure proceedings, and that the question of ownership and title to the property has been presented and litigated with all the parties present without any objection being made to the proceeding with the trial of the issues presented. In Hawi Mill etc. Co., Ltd., v. Leland, 56 Cal. App. 224 [205 Pac. 485], the ruling was had that personal property taken in an action upon claim and delivery and thereafter delivered to the plaintiff under the provisions of section 514, Code of Civil Procedure, remains in custodia legis after such delivery and is not subject to a writ of execution. It is also further held that mandamus will lie to compel redelivery of such property to the plaintiff in the claim and delivery action, in the event that the same is taken from him upon an execution issued in another action. In that case an execution was issued in an attachment, suit, the institution of which brought about the claim and delivery proceeding. The reasons given for the rule are that the sureties of the plaintiff in the claim and delivery proceeding, in the event the plaintiff therein is unsuccessful, have a right to have delivery to them of the replevied property in the event that they are called upon to pay the judgment for damages and the value of the property taken in the claim and delivery action against the plaintiff therein. To the same effect is the opinion of the court in Bisconer v. Billing, 71 Cal. App. 779 [236 Pac. 329]. In applying the principle involved in actions similar to the present, the court, in Hunt v. Robinson, 11 Cal. 262, on pages 274-279, sets forth that where attached property is taken on claim and delivery proceedings and then redelivered to the sheriff, such redelivery to the sheriff exonerates the sureties in the claim and delivery proceeding to the extent of the property so redelivered.

In the case at bar and following the opinion of the court in Hunt v. Robinson, supra,, the taking of the property from the defendants Fernandes in an action in which the defendant Tulledo is also joined would constitute an exoneration of the sureties in the claim and delivery action, for the simple reason that the ownership of the defendant Tulledo therein is completely and absolutely foreclosed. The ownership of the defendants Fernandes in and to the twenty-six head, taken under the claim and delivery proceeding, was also tendered and determined by the trial court. Without any plea in abatement in the foreclosure proceedings, without any objection to the court proceeding with the trial of the issues therein tendered other than the pleading which we have hereinbefore set forth, we do not very well see wherein any valid, objection is urged to the entry of the judgment of foreclosure in this action. Irrespective of whether the property taken under the claim and delivery proceedings is subject to execution in the forclosure proceeding, the -plaintiff, nevertheless, possessed the right under his chattel mortgage to have foreclosure judgment entered covering the property therein mentioned, if the court with all the parties before it claiming any interest therein found the property in question belonged to the mortgagor at the date of the execution of the chattel mortgage. As the reasons assigned for reversal do not appear to us sufficient, it is hereby ordered that the judgment be, and the same is, hereby affirmed.

Hart, J., and Finch, P. J., concurred.  