Lafontaine v. Greene

17 Cal. 294

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Cope, J. delivered the opinion of the Court

Field, C. J. concurring.

This is an action to recover specific personal property. The prima fade title established by the defendants was sufficient to destroy the presumption of title in the plaintiff, arising from the fact of possession. The defendants did not strengthen their case by going further and showing that the plaintiff obtained the property by proceedings under a void judgment. The plaintiff did not attempt to establish a title under this judgment, but relied exclusively upon the fact of his possession at the time of the taking by the defendants. The introduction of evidence showing the invalidity of the judgment was, therefore, of no advantage to the defendants, and of course did not prejudice the rights of the plaintiff.

There is nothing in the point that a Constable cannot serve an execution out of his township. To so hold would be to deny effect to sections six hundred and one and six hundred and two of the Practice Act. The case in this respect is different from that of Lowe v. Alexander (15 Cal. 296). The question there related to the service of a summons, and the decision was based upon the language of the second section of the Act of April, 1850, prescribing the duties of Constables. There was no other statute affecting the point in controversy.

Judgment affirmed.