Cosby

The application for a rehearing is denied. As to the refusal of the trial court to grant the motion for a new trial on the ground of newly discovered evidence, we are of opinion that the proposed evidence could not have substantially affected the result. It would still remain true that the ear remained in the garage up to or about the time of the transfer in the name of, and apparently subject to, the orders of the attorney for the attaching creditor.

All the Justices concurred, except Shaw, J., who was absent.

The defendant appeals from a judgment against him for damages from the conversion of an automobile.

One Boyd began an action in the superior court of the city and county of San Francisco against one A. B. Cosby to recover money due on contract and sued out a writ of attachment therein to the defendant in his official capacity as sheriff of Los Angeles County. The defendant received the writ, and in virtue thereof, on April 29, 1915, levied the same on the automobile in question and took it into his possession. Judgment was thereupon recovered in that action and a writ of execution thereon was issued to the defendant, by virtue whereof he sold the same to Boyd, the plaintiff in the action, on June 14, 1915. This is the conversion complained of. The defendant, in defense, set up the judgment, levy, and sale in justification. The sole question is whether or not the automobile was subject to attachment and execution as the property of A. B. Cosby at the time of said levy and sale.

The defendant’s claim is that the automobile was subject to execution against A. B. Cosby by virtue of the provision of the Civil Code that, “Every transfer of personal property ... is conclusively…