Buffandeau v. Edmondson

17 Cal. 436 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. concurring.

This was a suit brought against the defendant, Sheriff of Alameda county, for proceeding to sell property of plaintiff, which the defendant had levied on by virtue of an execution; the plaintiff claiming that before the sale an injunction had issued at the suit of the plaintiff enjoining such sale. The complaint also avers, that the plaintiff had been discharged from the debt on which the execution issued, by virtue of certain insolvent proceedings. Upon the trial, a nonsuit was ordered. The bill on which the injunction was granted was filed by plaintiff against one New, and the injunction restrained, by its terms, New, his agents and servants, from proceeding to sell under the execution. A copy of the injunction and of the complaint was served upon the Sheriff before the sale, but he proceeded, nevertheless, to make the sale.

It is unnecessary "to consider whether the bill of complaint showed a proper case for an injunction, or whether the injunction was regularly granted or not. It was enough for the Sheriff to know that a Court of competent jurisdiction had made the order, and then it became his duty to obey it. It is no part of a Sheriff’s duty to sit in judgment upon judicial acts, and reform the errors or revise the orders of the Judge. As'the execution is only an order of the Court, it would be strange if the Sheriff were held under onerous penalties to obey its commands, and yet be absolved from the duty of yielding obedience to an order made directly by the Judge, touching the same subject matter. The injunction, so long as it remained in force, operated as a supersedeas to the execution; the legal authority to sell the property was withdrawn by the same authority which had given it, to wit: by the act of a competent Court; and the Sheriff had no more legal justification for his act than if he had proceeded to sell after the execution had been quashed. The injunction in this case had direct effect upon the process itself, and though, in order to charge the Sheriff, it was necessary that he should have notice of the order, yet after such notice, his act was in defiance of law, and in contempt of the Court. It is true, that for such conduct the law has provided a remedy, by the punishment of the offender; but this provision is more for the sake of the public than for the redress of the private grievance involved in such delinquency. As the only authority of the Sheriff to levy and sell came from the execution, and as the injunction superseded the execution and withdrew the authority, it follows that the Sheriff is no better protected than if he were a naked trespasser.

It is said that the Sheriff was not made a formal party to the bill of complaint in the injunction suit, and therefore was not bound to obey the writ. Being a mere ministerial officer, with no interest in the subject of controversy, and acting in the execution of the-process as the agent of the plaintiff in the writ, we are by no means, convinced that he was a necessary party to the proceeding. But if he were, he was a mere formal party, and the failure to include him by name did not absolve him from the duty of obeying the order when notified of it. If, on petition, a supersedeas had issued, or an order for a stay of the execution had, or an order quashing it had been made, no doubt can exist that the order would be effectual without any previous notice to the Sheriff, or his having been made a party, and we see no difference in principle in this respect between an order in equity of this character and one at law. In Story’s Equity Pleadings (sec. 229) it is said: “ The misjoinder of a mere nominal or formal party will often be dispensed with, if entire justice can be done without him. Indeed, the joinder or misjoinder of nominal or formal parties will not ordinarily be allowed by the Court as a valid objection to proceedings under the bill.” And again, (sec. 231) “ In the next place, no person should be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had. Upon this ground it is that a person who is a mere agent in the transaction ought not to be made a party to a bill; as, for example, an auctioneer who has sold an estate, the sale being the matter in controversy; or a steward or receiver of the rents and profits, where the controversy is between the vendor and vendee to a bill for a specific performance; or an attorney or solictor who has negotiated an annuity to a bill to set it aside, on account of a defective memorial; or an arbitrator to a bill to enforce or to set aside an award.”

It is said that no precedent can be found for such an action as this against an officer for disobedience of the order of the Court, and this is urged as persuasive of the conclusion that it is not maintainable. Several cases are cited which are not analogous in fact or principle. It would present a strange anomaly in jurisprudence if a public officer could convert property when he was expressly inhibited by the law from taking it, and claim protection from legal responsibility by showing an execution which had been legally superseded. The principle is familiar enough to need no citation of authority, that a Sheriff cannot seize or sell the property of a Citizen, unless he has legal process authorizing it; and that process which has been superseded is no authority at all when the officer is duly notified of the order of supersedeas. Many technical points have been taken by the respondents, but there is nothing in any of them worthy of further examination.

It is not necessary to consider the effect of the insolvent proceedings, for independent of this ground, the plaintiff was entitled, upon the case made, to judgment. If the Sheriff, without legal authority, converted the plaintiff’s property, prima fade he is responsible to the plaintiff for at least its value ; and if he has any defense arising from the fact that the property was justly subject to the plaintiff’s debts, and has been so applied, it will be time enough to inquire whether this is properly in mitigation of damages, when the defense is made and the facts presented. We intimate no opinion now upon the subject.

Judgment reversed and cause remanded.