Los Angeles herald., 1893-01-01
A SUPREME COURT OPINION,
The Case of Tower vs.. McD0w-
ell Finally Decided.
The Terminal Railway Company Wins
q Damage Suit.
A Railroad Company Asked to Employ
Defeated Suitor-New Infor-
snations-Court Notes.
New Suits.

An opinion by the supreme court was
received yesterday by M. J. Ashmore,
deputy clerk, in the case of Virginia A..
Tower, respondent, vs. s. A. Mcdowell,
appellant.
/ The case was an action to recover the
value OF certain personal property of the
plaintiff, alleged to have been wrong
fully taken and converted to his own
use by the defendant.
The defendant denied that the plain
tiff owned or possessed the property at
the time it was taken, and alleged that
it was owned and possessed by f. @.
Tower, plaintiffs husband, and F. E.
Bates, from whom the defendant, as
sheriff, took it, by authority of a writ Of
execution against them in favor of the
First National bank of San Diego. 1t
was further alleged in the answer of de-
fendant that +. @. Tower and F. L.
Bates made bill of sale Of the property
to the plaintiff without consideration
and for the purpose of defrauding their
creditors, and that the sale was not ac-
companied by an immediate delivery of
the property, nor followed by an actual
The cause was tried without Jury,
and the court found the facts on all the
material issues in favor of the plaintiff
and rendered Judgment accordingly for
the sum of $3349 &c., The defendant ap-
pealed from the judgment and the order
denying motion for new trial.
The court, in ruling upon the appeal,
says that the evidence, though conflict
ing on the issues as to value, immediate
delivery and continued change of pos
session OF the property, is sufficient to
justify all the findings of fact, and that
the findings support the judgment, and
that appellants counsel do not eeem to
contend with much confidence to the
contrary.
In their reply brief, the court says,
the principal error complained of by
appellant on the trial, on motion for
new trial, was the refusal of the trial
court to permit evidence of the sums for
which the property sold at we'll at
tended, fairly conducted auction sale, at
which the bidding was spirited and the |
competition sharp. This referred to the |
sherif's sale of the property in question,
consisting of livery stable-horeeB,
buggies, wagons and appliances| |About |
fifty in number.
The court holds that the only possible
ground for reversal available to appel
liant is that the court erred in exclud.
ing or admitting evidence touching the
issue as to the value of the property /;
since the defendant did not offer in evil
dence the execution under which he
justified the taking, nor any execution
whatever, nor the return upon any exc
cutien. The plaintiff, in rebuttal, how
ever, put in evidence the execution un-
der which defendant justified and the
sheriff's return thereon, showing that
he received the execution March 5. 1889,
levied it on July 13, 1889, and sold the
property on July 20, 1889, in separate
parcels, for the aggregate sum of
$2355.42. 1t thus appears, says the
court, that the best evidences of what
the property sold for was introduced by
the plaintiff: go that the rejection of
oral evidence, offered by defendant,
even if competent. could not have in
iured him. Besides, it does not appear
that the court excluded oral evidence of
the aggregate sum for which all the
property sold. Under the views ex
pressed the court orders the Judgment of
the superior court to be affirmed.