Barton v. Continental Oil Co., 5 Colo. App. 341

Barton v. Continental Oil Co.

5 Colo. App. 341 | Colo. Ct. App. | 1894

Reed, J.,

delivered the opinion of the court.

The law in regard to an undersheriff is the following: “ The sheriff of each county shall, as soon as may be after-entering upon the duties of his office, appoint some proper person undersheriff of said county, who shall also be a general deputy, to hold during the pleasure of the sheriff.” “ Whenever a vacancy occurs in the office of sheriff of any county, the undersheriff of such county shall in all things execute the office of sheriff until a sheriff shall be appointed or elected and qualified; and any default or misfeasance in office of such undersheriff in the meantime, as well as before such vacancy, shall be deemed to be a breach of the condition of the bond given by the sheriff who appointed him, and also a breach of the bond executed by such undersheriff to the *345sheriff by whom he was appointed.” “ Each sheriff may appoint such and so many deputies as he may think proper, for whose official acts, and those of his undersheriff he shall be responsible, and may revoke such appointments at his pleasure.” Gen. Stats., secs. 595-597.

It will be seen by the above statutory provisions that the sheriff is primarily liable to any person who may be damaged by the improper official acts of his undersheriff; that, in legal contemplation, all the acts of the undersheriff are the acts of the principal, for which he and his bondsmen are liable, while he has his remedy over against the undersheriff and his bondsmen. This being the law, the acts and doings of Adams as undersheriff could only be regarded by the defendant in error as those of the sheriff, in so far as they were the official acts of the office.

The taking of a forthcoming bond for attached real estate was a novel proceeding, without warrant of law or common sense. The taking of the bond and attempted entry of satisfaction and release of the attached property upon the county records show either such gross ignorance of the duties of his office as should have disqualified him, or a studied attempt to perpetrate a fraud upon the defendant, — which, it is unnecessary to determine. It is clear that if the defendant was damaged and defrauded of its claim by the acts of Twining and the sheriff, it had a civil remedy by proceeding against the sheriff and his bondsmen. The proceeding in this case is for a contempt of court, criminal or quasi criminal,in its character, as shown by the judgment and order of court committing the defendant, upon failure to pay the amount of the judgment. As such it should have been insti'tuted by and in the name of the people. The failure to do so and the prosecution on behalf of the appellee is erroneous, and would warrant a dismissal of the writ of error ; but we prefer to decide it upon the merits of the case as presented. The entry of the sheriff upon the margin of the record, acknowledging satisfaction and releasing the attachment, was regarded by the court as estopping the sheriff from denying *346the receipt of the money. Had there been judgment, and a special execution issued returned satisfied by the sheriff, a very different question would have been presented, the sheriff estopped, and the course pursued by the court warranted. The act of the undersheriff, Adams, in attempting to release the attachment, was extra-official and void. The entry in no way affected the Oil Company. I can find no statutory authority for a sheriff to release the record of attachment or enter satisfaction. It must come, if at all, either from the attaching plaintiff or the order of the court. The Civil Code (section 104) provides that real estate “ shall be attached by filing a copy of the writ, together with a description of the property attached with the recorder of the county.” The sheriff’s duties are terminated when those acts are performed and he can exercise no further agency or control. “The lien created by the attachment, whatever may be its character, is in the attaching creditor, and he only can release or discharge it.” Drake, Att. (4th ed.) sec. 240. In Wade, Att. (section 260) : “ By the attachment the officer acquires neither possession of, nor special property in, real estate. Consequently, he cannot voluntarily release it when it is once attached, as he may do in case of personalty. The plaintiff alone can release the attachment on lands.” “ By the act of attaching, no estate passes to the plaintiff or to the attaching officer.” 1 Drake, Att., sec. 239; Lyon v. Sanford, 5 Conn. 544; Scott v. Manchester Print Works, 44 N. H. 507. A case very nearly parallel in some particulars was Braley v. French, 28 Vt. 546. By a statute of that state the officer attaching real estate was required to leave a copy of the writ, and his return, with the town clerk, who was required to enter it in a book kept for the purpose. The officer made' the levy, filed the papers, etc., but before record withdrew them, erased the levy made upon the real estate, and made a return of a levy upon personal propertj'-, to allow another attaching creditor to take title to the real estate free from the lien of his levy. The first attachment and debt were not satisfied; the other creditor took title of the real estate *347through a judicial sale. The first attaching creditor brought ejectment and maintained his suit, the court holding: “We think, therefore, that the lien of the plaintiff on this real estate was not lost by that act of the officer, and that the defendant, in taking a conveyance of these premises, took the same subject to the lien of the plaintiff under that attachment.” See also Blossom v. Estes, 84 N. Y. 614. It is clear from the authorities that the act of the undersheriff in releasing the attachment was unofficial and void; that the Oil Company was not and could not be prejudiced by it; that the purchaser, Hayes, took the property subject to its attachment lien, and that it was not warranted in abandoning such a lien, and attempting to hold the sheriff personally responsible ; that the sheriff is not responsible for the unofficial or extra-official acts of his deputy. See Meachem Pub. Off., sec. 797; Murfree on Sheriffs, sec. 77; State v. Moore, 19 Mo. 369; Dorr v. Mickley, 16 Minn. 20 (Gil. 8). Consequently, the sheriff was not estopped by the entry of satisfaction by the undersheriff upon the margin of the record. If the fact of the receipt of the money by either officer had been established, and the monej retained, the sheriff, as an officer of the court, would have been liable to the proceeding for contempt. The answer of the respondent denied the receipt of any money whatever, and that issue of fact should have been tried, and the sheriff found to have received and retained it, before he could be found guilty of contumacy or contempt. Until such facts were established, the court was without jurisdiction to order and enforce a judgment for contempt. Such summary and unwarranted proceedings for the collection of a debt should be discouraged. If the plaintiff had suffered loss by the acts of the sheriff or undersheriff, a civil action against the sheriff upon his official bond would have secured indemnity. The court erred in sustaining the demurrer to respondent’s answer. The judgment will be reversed, and cause remanded.

Reversed.