Black v. Vermont Marble Company

Action to recover from the defendant certain moneys received by it upon a sale by the sheriff of certain merchandise belonging to the defendant.

The facts connected with the transaction are given in the opinion in an action between the same parties reported at 137 Cal. 683 , [ 70 Pac. 776 ], the difference between the two actions being that the former was an action in claim and delivery for property purchased by the defendant at the sheriff’s sale therein referred to, while this is for moneys received by the defendant from the sheriff upon the sale by him to other persons. The defendant sets up in its answer as special defenses to the action the statute of limitations and the pendency of another action. Upon this latter defense the court found that the action referred to was not for the same-cause of action as that set forth in the complaint herein. It found that the plaintiff’s cause of action accrued more than three years prior to the commencement of the present action, and is barred by subdivision 1 of section 339 of the Code of Civil Procedure. Judgment was thereupon rendered in favor of the defendant, from which and-from an order denying a new trial the plaintiff has…