Newhall v. Provost
California Supreme Court
Appeal from the District Court of the Fourth Judicial District. The plaintiffs filed their bill of foreclosure of a mortgage made by defendants to F. W. Page, and by him assigned to plaintiffs, May 3d, 1855. The defendants admit the execution of the note and mortgage, but set up in their answer that they have been garnisheed in two several suits of Schloss et al. v. Page Bacon & Co.; and Goldstein et al. v. Page, Bacon & Co. Schloss and others, and Goldstein and others,…
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Appeal from the District Court of the Fourth Judicial District. The plaintiffs filed their bill of foreclosure of a mortgage made by defendants to F. W. Page, and by him assigned to plaintiffs, May 3d, 1855. The defendants admit the execution of the note and mortgage, but set up in their answer that they have been garnisheed in two several suits of Schloss et al. v. Page Bacon & Co.; and Goldstein et al. v. Page, Bacon & Co. Schloss and others, and Goldstein and others, intervene, and aver that their writs of attachment were served on the defendants on the same day and at an earlier hour than…
1Opinion of the Court
The opinion of the Court was delivered by Mr. Justice Heydenfeldt.
Mr. Justice Terry concurred.
It is unnecessary in this case to consider whether a sheriff’s return in one action can be impeached in another suit by a stranger to the first action. It is very certain that the sheriff had no right after making a return to amend it so as to affect rights which had already vested.
The ease must go back, and the first return of the sheriff must be taken as conclusive as against Schloss and Goldstein, as far as regards the rights of the plaintiffs.
Judgment reversed, and cause remanded.
2Cited by4 opinions
- Renick v. LudingtonWest Virginia Supreme Court · 1882
- Farmers Bank & Trust Co. v. StanleyCourt of Appeals of Kentucky · 1921
- Chicago Planing Mill Co. v. Merchants' National BankIllinois Supreme Court · 1881
- Stewart v. StringerSupreme Court of Missouri · 1869