Clyne

The trial of this cause in the superior court resulted in a judgment for the plaintiff. Defendant moved for a new trial, and its motion was granted as to some of the issues, but denied as to the others. Both parties appeal—plaintiff from that part of the order which directs a new trial of the issues as to which the findings are vacated, and defendant from the part which denies a new trial of the remaining issues. The record is of course the same on both appeals, and they have been submitted together.

The salient facts of the case are that the defendant, a California corporation, prior to the seventh day of June, 1893, had written authority from Linnie W. Goodyear and her husband, H. C. Goodyear, to sell on commission 1,244.31 acres of land belonging to Mrs. Goodyear. The land was heavily encumbered by a first mortgage to the German Bank and by a second mortgage to one Kahn. The authority to sell provided for a sale of the land in separate tracts at a fixed minimum of price, and defendant was to receive a commission of two and one half per cent of the price so fixed, and also one half of any excess received from sales of the property over and above the fixed price plus the…

I concur in the judgment and in all of the opinion of the chief justice, except the part thereof to the effect that where a garnishee, in his answer to the sheriff, admits that he is indebted to the defendant, the service of the garnishee process in such eases interrupts the running of the statute of limitations on the debt, and in fact prevents its again running until the attachment is discharged or the plaintiffs’ debt paid. The provision of section 544 of the Code of Civil Procedure, which is said to have this effect, applies alike to cases where the garnishee owes a debt' to the defendant and to those where he has in his possession personal property belonging to the defendant. Where the garnishee has property which he admits he holds as custodian of the defendant, the statute of limitations does not run, and cannot begin to run, so long as he admits that he holds as such custodian, nor until in some manner he asserts a claim thereto adverse to the defendant. The admission in the answer to the sheriff in such cases, therefore, would of itself be evidence that the statute had not begun to run. But where a matured debt exists at the time of the service of the garnishee process…