The herald., 1893-06-20
SUPERIOR COURT.
SEVERAL DECISIONS HANDED DOWN
YESTERDAY.
Judge Van Dyke Decides Ybarra and
Shepherd vs.. Strengthening
Co. VS.. the KimbaII Company
Settled by Judge Wade.

Judge Van Dyke yesterday denied a
motion to discharge the attachment in
the case OF Candelario Ybarra and Chas.
J. Shepherd VS.. Stephen Sylvany, in
accordance with an opinion filed.
The complaint in the case alleged that
the plaintiffs since May 8. 1873, have
been the owners of lot one, of the barra
tract, on Downey avenue, in this city,
and are entitled to the rents and profits
from the property. But that the de-
PENDANT has received rents and profits
amounting to $17 200 which he has ap-
propriated to his own use without &C.
counting to the plaintiffs therefor, and
they demanded that he be made to pay
it over to them.
An attachment was issued upon the
filing of the necessary affidavit and bond
and the defendant moved to dissolve the
attachment on the ground that the ac-
ton does not come within the purview
OF subdivision one, section 537, code of
civil procedure or in other words, that
it was not founded upon a contract, ex-
press or implied for the direct payment
of money.
In his answer the defendant set up
afiirmatively that he waa in possession
OF the premises, claiming them in his
own right, that he paid the taxes and
erected improvements on them, and that
if any right of action exists in favor of
plaintiff it is founded upon tort and not
upon contract, that it arises from mesne
profits, or for the embezzlement of the
money by the defendant. From numer-
GUS authorities the court holds that it is
very clear thst the action is upon con-
tract for the direct payment OF money,
and the motion to dissolve is denied.
In Judge Wade's court yesterday the
court in accordance with a short opin-
ion in the case of William Deering & Go.
vs.. the Richard Kimball Co., ruled that
nothing in the briefs OF council seems to
cast any doubt upon plaintiffs right
to the relief demanded. They obtained
q lien upon all monies in the hands of
the garnishee at the date of punishment
except that which was in garnishee's
hands at the date of Carter's garnish-
ment, emouDting to- So and fraction,
and are entitled to have the amount so
occurred paid to them by the bank.
Judge Wade also gave judgment for
the plaintiff in the case of A. Beecher
vs.. NJ. 7. Gravel, in accordance with
short opinion. The action was one to
quiet the title against claimants Of title
and liens subsequent in time to plain
tiff's deed to certain lots. The plaintiff
claimed under so-called deed of trust
from the admitted original source of
title, in which he appeared both as
trustee and beneficiary. As the former
he sold and as the latter be bought az
sale made upon default of the trustors.
The court holds that it was a mortgage
with power OF sale, and the MORTGAGE
might both sell and purchase and pass
the legal title to himself. Such sale
could only be attacked by direct pro-
ceedings within reasonable time by
the mortgagors. Judgment, therefore,
went for plaintiff.
In the insolvency proceedings of j.
Schurtz VS.. his creditors, Judge Wade
yesterday morning denied a motion to
dismiss the proceedings, for the reason
that the files and papers do not support
the grounds of dismissal alleged in the
notice. and for the further reason that
the affidavit does not show that the
moving party was creditor.