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63 Cal. 220; Hobbs v. Duff, 43 Cal. 485; Hodgdon v. Griffin, 56 Cal. 610. It follows that the objection of respondent is untenable, because not taken in the court below.

It appears the action was brought to recover personal property, the furniture and fixtures in a restaurant, which, according to the evidence, plaintiff had contracted to sell to one Flanders, when the latter should pay the purchase price thereof, until which time plaintiff was to retain the title. Flanders paid a part of the purchase price, and was placed in possession of the furniture and engaged in the business of keeping a restaurant, using the furniture in question therein.

Defendant denies plaintiff's ownership of the goods and chattels; avers that plaintiff took possession of the property under proceedings in claim and delivery in this action, and still retains such possession; and for a further answer avers that he is a constable in and for Empire township, county of Stanislaus, and that as such he levied upon, and took possession of, the goods in question, under and by virtue of a writ of attachment issued out of justice's court, in an action in which one John Simon was plaintiff, and E. Flanders was defendant. That the property in dispute was owned by Flanders, and was taken from his possession under said writ, which ran against his property, etc. Defendant first offered in evidence the writ of attachment, which was objected to as insufficient to justify him as constable in seizing the property without proof of the regularity of the proceedings under which it issued. The objection was sustained by the court, whereupon the pleadings, summons, undertaking on attachment and affidavit for attachment, as well as the writ, were offered in evidence.

Objection was made to the sufficiency of the affidavit for an attachment, which showed that defendant (Flanders) was indebted to him, the said plaintiff, in the sum of $141.14 on contract, but failed to show whether upon an express or implied contract. The objection was sustained, and the papers excluded, and the rulings are assigned

as error.

The first question presented is as to the sufficiency of a writ of attachment, regular upon its face, to justify the officer acting under it. Ministerial officers are presumed to know the law, and are bound at their peril to know the general jurisdiction of the courts whose process they are called upon to enforce; and if they execute process which the court has no jurisdiction to issue, they are liable. Freem. Ex'ns, § 100. If, however, a writ is issued by the proper officer, in due form, in a case where he has jurisdiction, and authority to exercise. jurisdiction, over the subject-matter of the writ, and there is nothing on the face of the writ showing it to be illegal, the officer to whom it is directed, and whose duty it is to execute it, may do so, and justify his acts thereunder by producing the writ, although from some cause no apparent on the face of the writ the whole proceeding is irregular or void. Freem. Ex'ns, § 101, and cases cited. The rule is the

same in case of process issuing out of courts of limited jurisdiction. Savacool v. Boughton, 5 Wend. 170. "A sheriff or other ministerial officer is justified in the execution of, and must execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued." Pol. Code, § 4187. It is said by Drake, in his work on Attachment, (section 185a:)

"When the officer attaches property found in the possession of the defendant, he can always justify the levy by the production of the attachment writ, if the same was issued by a court or officer having lawful authority to issue it, and be in legal form. But when the property is found in the possession of a stranger, claiming title, the mere production of the writ will not justify its seizure thereunder; it rests upon the officer to go further and prove that the attachment defendant was indebted to the attachment plaintiff. If, in the attachment suit, judgment was rendered in favor of the plaintiff, that will establish the indebtedness of the defendant; if not, the officer must otherwise prove the indebtedness in order to justify his proceeding." Thornburgh v. Hand, 7 Cal. 554; Damon v. Bryant, 2 Pick. 411; Rinchey v. Stryker, 28 N. Y. 45; Horn v. Corvarubias, 51 Cal. 524; Sexey v. Adkinson, 34 Cal. 346.

In the case last cited our supreme court held to the doctrine enunciated by Drake, as above quoted, and in very nearly the language of that author. In Babe v. Coyne, 53 Cal. 261, the writ under which a sheriff had made a levy, and the affidavit on which it was issued, were introduced in evidence, and this court held that it made out a prima facie case of justification of the seizure of the property, notwithstanding the affidavit was originally insufficient, and was amended subsequent to the seizure. This was in a case where the property was in the possession of the defendant, and was attached as his property. Had the affidavit not been offered with the writ, the ruling would doubtless have been the same. The reason for the distinction between cases where the writ is levied upon property in possession of the defendant in the writ, and where the property is found in possession of a stranger to the writ, is found in the fact that the defendant may, if the attachment has been improvidently issued, move to have it quashed, or have an action upon the undertaking, while a third party, a stranger to the writ and the record, could not be heard for such purpose; hence the justice of requiring an officer who takes property, not from the defendant against whom the writ runs, but from the possession of a stranger, whom the law presumes to own it, to show, not only his writ, but that it issued regularly, upon a valid demand against the defendant named in such writ.

It follows from these views that, as the property in dispute was found in the possession of Flanders, and was levied upon by the constable under a writ of attachment against him, regular upon its face, issued by a justice of the peace having jurisdiction of the subjectmatter, and in a case where under the law he was authorized to issue the same, that the writ of attachment was admissible in evidence

in justification of the act of the officer in making such levy; and to exclude it was error. It must not be understood that we hold the writ as anything more than prima facie evidence of the right of the constable to make the levy and take possession of the property. If it in fact belonged to plaintiff, he was entitled to recover upon proving the property to be his. It follows that if the writ of attachment was admissible in evidence when offered by itself, it was equally admissible when offered with the summons, affidavit, etc., in connection with it. At the trial plaintiff was sworn as a witness in his own behalf, and gave evidence tending to show that in March, 1882, he was the owner of the property in question, and entered into a contract with Flanders to sell to him the property for $1,000, plaintiff to retain the title until the property was paid for; that Flanders paid or secured $300 of the purchase money. Plaintiff then rented to Flanders a restaurant in which the property was used, and gave possession of the personal property to Flanders, who was to pay rent, interest on the purchase money due, and to have the personal property when he paid for it.

On cross-examination the witness was asked the following question by counsel for defendants: "Describe the property which you sold to Mr. Flanders." Counsel for plaintiff objected to the question upon the ground that it was immaterial and irrelevant. The objection was sustained by the court, and the ruling is assigned as


Plaintiff's ownership of the property was denied by the answer, and having testified to such ownership, and as to a contract of sale to Flanders under which the latter was placed in possession, it was proper, on cross-examination, to inquire as to the precise property included in the transaction, defendant had a right to show by the witness, if he could, that the alleged contract of sale was in fact a sale in præsenti, or that the contract did not include all the goods levied upon, etc.

We think the court erred in sustaining the objection to the question.

We find no error in the other points made by defendant upon the refusal of the court to permit the witness to answer questions propounded. Judgment was rendered in favor of the plaintiff for the possession of the property described in the complaint, and for costs; but did not provide for a recovery of its value as provided by section 667 of the Code of Civil Procedure. The property had already been delivered to plaintiff. Under these circumstances, respondent claims that no injury was done to appellant by a failure to provide in the judgment for a recovery of the value of the property, and his contention seems plausible. But in Berson v. Nunan, 63 Cal. 550, it was held that in actions to recover personal property the judgment must be in the alternative form required by section 667 of the Code of Civil Procedure.

We are of opinion the judgment of the court below, and the order denying a new trial, should be reversed and a new trial had.

We concur: BELCHER, C. C.; Foote, C.

BY THE COURT. For the reason given in the foregoing opinion the judgment and order are reversed and cause remanded for a new trial.

(67 Cal. 599)


(No. 8,497.)

Filed October 22, 1885.


In an action to recover land, an answer alleging that a mistake was made in drawing the deed from plaintiff to defendant, whereby the land sued for was excepted from its operation, when, instead, according to the agreement of parties, the deed should have passed the title, but have reserved to plaintiff a right of way over the land, and admitting title still in plaintiff, but asking a reformation to conform to the agreement of parties, raises an issue; and if the facts are found as alleged in the answer, they will constitute a good defense, in which case the findings should set forth the facts in clear and unmistakable language, whether or not the court goes further and actually reforms the deed.


No findings are necessary upon such facts as are admitted, but only on such facts as are put in issue by the pleadings; if, however, findings are made upon admitted facts, they should be in harmony and not in conflict with the facts as admitted.

Commissioners' decision.

Department 2. Appeal from superior court, Stanislaus county. Wright & Hazen, for appellant.

W. E. Turner, for respondent.

BELCHER, C. C. (1) The demurrer to the answer was properly overruled. The answer denied the plaintiff's ownership, or right to the possession, of the land sued for, “save and except as hereinafter set forth," and then set up an equitable defense. It stated facts sufficient to constitute a defense, and as a whole was not ambiguous, uncertain, or unintelligible. (2) The findings do not meet the issues raised by the pleadings.

The answer alleges a mistake in drawing the deed from the plaintiff to the defendant, whereby the land here sued for was excepted from its operation, when, according to the agreement of the parties, there was to be, and should have been, only a reservation of a temporary right of way over it. The answer admits that the title to the land in controversy is still in the plaintiff, and asks that the deed be reformed so as to express the real agreement between the parties to it at the time of its execution. If a mistake was made in drawing the deed, as alleged, that fact should have been found in clear and unmistakable language, and, being found, would have constituted a defense to the action, whether the court went further and actually reformed the deed or not. Hoppough v. Struble, 60 N. Y. 430.

But the finding was only that "it was agreed at the time of the sale by the plaintiff to the defendant that so long as the plaintiff maintained and ran said ferry, he should have the right of way across said corner of said land, for a road to and from his ferry-landing to a point intersecting the county road, and the reservation clause in said deed, as set forth in finding No. 2, was inserted for the sole purpose of reserving to plaintiff the said right of way free from all let or hinderance from this defendant while he, plaintiff, maintained and ran said ferry." It was then found "that since the thirteenth day of March, 1878, plaintiff has not been the owner of or seized in fee of the premises described in plaintiff's complaint, or any part thereof, and since the day of March, 1879, has not been in possession of or entitled to the possession of said described premises, or any part thereof;" and, as conclusions of law, "that the deed of conveyance from plaintiff to defendant, as set forth in finding No. 2, conveyed the absolute title of all the lands in said deed described, and that the reservation clause as set forth in finding No. 2 did not reserve in plaintiff the legal title to any portion of said described premises, nor did it entitle him to possession of any portion of said described premises, save and except during such time as he, plaintiff, was maintaining and running a public ferry as established and maintained at the time of the sale from plaintiff to defendant.

Findings should be confined to the facts put in issue by the pleadings, and upon such facts as are admitted by the pleadings no findings are required. If, however, findings are made upon admitted facts, they should be in harmony with the facts as admitted, and not in conflict with them. "A finding which negatives the existence of a fact admitted by the pleadings is a finding against evidence, and the judgment rendered thereon is erroneous.' Silvey v. Neary, 59 Cal. 97. Here there is no direct and clear finding as to the mistake alleged, and the finding and conclusion as to the operation and effect of the deed are in direct conflict with the admissions in the answer. It follows that the judgment must be reversed.

We concur: SEARLS, C.; Foote, C.

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BY THE COURT: For the reasons given in the foregoing opinion the judgment is reversed.


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