65 P. 125 | Cal. | 1901
This action is brought by the assignee of the defendants in an attachment suit against the sheriff of the city and county of San Francisco, and the sureties on his official bond, for damages arising out of a failure on the part of said sheriff to safely keep the attached property of the said defendants in said attachment suit and to restore the same to said defendants on demand after judgment rendered in their favor.
The plaintiff had judgment, and defendants appealed from the same and from an order denying them a new trial and also from an order modifying said judgment.
The undisputed facts of the case are as follows: In the suit ofSlosson v. Glosser et al., a writ of attachment was issued, and the defendant in this case, as sheriff, under said writ, took into his possession some twenty-two bicycles and some other articles of small value belonging to said defendant Glosser. *112
Nearly two years later, judgment was duly given, made, and entered in said suit in favor of defendants and against the plaintiff therein. Thereupon the said defendant Glosser demanded of said sheriff that he return the property taken by him under said writ of attachment. In response to this demand, the sheriff made no claim of lien on the property for any costs, charges, keeper's fees, or anything of that kind, but stated, in substance, that he did not have the property; that he had stored it, and the warehouseman had sold it for storage, all of which was proven at the trial to be true. Thereafter, and before the commencement of this action, said Glosser assigned his claim against said Whelan, arising out of said facts, to the plaintiff herein. No order was made in the attachment suit allowing or fixing keeper's fees or other compensation to the sheriff for attaching or keeping the property.
It was also proven at the trial, and found by the court, that, prior to the commencement of this action, the plaintiff herein, in consideration of sixty dollars, the amount of the judgment for costs in favor of defendants in the attachment suit, released the sureties from all obligation on the undertaking on attachment given in said suit.
1. In permitting the property to be sold for storage, the sheriff violated the duty to safely keep the same and to restore it to the defendant on his recovering judgment. (Code Civ. Proc., secs.
2. Nor does the fact that the plaintiff discharged the sureties on the undertaking on attachment from further liability operate as a defense to this action. They were not joint tort-feasors with the sheriff; and it is immaterial whether or not they were liable at all for the act of the sheriff. It is only by virtue of their contract that they can be held so liable. They *113
were guilty of no tortious act. The sheriff's liability arose from his tortious act in not safely keeping the property, but permitting it to be disposed of contrary to law. In Chetwood v.California Nat. Bank,
3. The judgment in defendant's favor in Slosson v. Glosser etal., ipso facto, dissolved the attachment. (Code. Civ. Proc., sec. 553; O'Connor v. Blake,
4. There was substantial evidence in the testimony of Van Der Vort tending to show that the property at the time of its sale by the warehouseman, as well as when seized by the sheriff, was of the value fixed in the modified judgment. It cannot be said, therefore, as a matter of law, that the decision that the property was worth $315 is without support in the evidence.
The judgment and orders appealed from should be affirmed.
Haynes, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment and orders appealed from are affirmed.
McFarland, J., Henshaw, J., Temple, J.
*114Hearing in Bank denied.