158 P. 760 | Cal. | 1916
Appeal from an order made after final judgment denying the appellants' motion to have the costs taxed by the court, and to strike from the cost bill certain items relating to keepers' fees.
The action in which this proceeding arose was commenced on December 18, 1911, to recover of the Lost Hills Syndicate, E.A. Wiltsee, J.M. Danziger, J.M. Kent and others, the sum of $1,170.42, for wages and for moneys advanced. Personal service was made on defendants Danziger and Kent. On December 20, 1911, a writ of attachment was issued and levied upon personalty and fixtures consisting principally of 2,000 feet of lumber blown down from rigs, about 2,000 feet of rig timbers, three galvanized iron tanks, several sets of rig irons, shovels, picks, stoves and cooking utensils, bedding, and various implements used in connection with the business of drilling and mining for oil, and also a frame house (12x14), a derrick, one rig blown down, and five rigs in place. This property was scattered over a considerable area embracing two separate tracts of land, included within four sections in different townships and ranges in the Lost Hills District, also known as the Lost Hills Fields, of Kern County. The value of the attached property at the time of the seizure, according to the affidavits which were filed in the proceeding by the appellants and respondent, was estimated at $1,330 and $2,430, respectively. The sheriff took possession of the property upon receipt of the writ of attachment, and, without moving it from the land, placed keepers in charge, who remained for a period of 437 days, or until March 22, 1913. At the rate of $2.50 per day for each tract of land the total *740 charge for this item of cost amounts to $2,185. On April 29, 1913, all the property which had been attached was sold at public auction under a writ of execution, and the sum of $550 was realized. Meanwhile service of summons was made upon defendant E.A. Wiltsee, by publication, and his default entered on August 26, 1912. Although the case was then at issue, it was not tried until March 21, 1913. The following day judgment was rendered in favor of the plaintiff and respondent. The motion to tax the costs and strike out the items for keepers' charges was made by J.M. Danziger and J.M. Kent, the appellants herein, and rested in part "upon the grounds that said costs are exorbitant and excessive, and are not justified by the facts of the case, nor are they legitimate costs to be assessed against said defendants." The court denied the motion, and this appeal was taken.
1. The appellants' first contention is that the keepers' services were unnecessary, as all "this property that was seized was perishable property," and should have been sold by the sheriff immediately after the seizure. In support of this contention the appellants lay great stress upon the following definition of "perishable" from Anderson's Law Dictionary: "Subject to speedy and natural decay. But where, as in the case of a levy upon personalty, the time before a sale can be made is necessarily long, the term may embrace property liable to material depreciation in value from other causes than decay." (See, also, Black's Law Dictionary; Witherspoon v. Cross,
The remedy available to the appellants, had they actually desired to have the property sold before the termination of *742
the action, would have been to apply to the court for an order directing its sale. (Code Civ. Proc., sec. 548.) If it had been made to appear satisfactorily to the court that the interest of the parties would have been subserved by a sale thereof, it would have been its duty to make such an order without regard to the question whether or not the property was perishable. (Henry Cowell etc. Co. v. Figel,
2. The appellants contend, moreover, that the sheriff should at least have gathered the property together and safely stored it under lock and key at a nominal expense, rather than to leave it standing idle and exposed to the elements, and subject to the heavy and unnecessary expense of maintaining keepers. It is pointed out that the effect of the course pursued by the sheriff has been to impose upon them a great hardship. "In addition," they say, "to having their property sacrificed they are called upon to pay a sum almost four times in excess of its value and almost twice the amount sued for." But the sheriff had no discretion but to obey the writ commanding him to "attach and safely keep all the property." (Code Civ. Proc., sec. 540.) It is his duty to preserve such property at his peril. (6 C. J. 370, sec. 819.) Of course, "he should make the expense of keeping it as light as possible consistent with its safekeeping. . . . In keeping property under process, the same prudence and economy should be exercised as in the ordinary business affairs of life. No unnecessary expense should be incurred therein." (Harlow on Sheriffs and Constables, 3d ed., secs. 251, 252.) It is unfortunate that in this case the sheriff's charges greatly exceed the value of the attached property, but it must be presumed in favor of the judgment herein that the superior court found that they were "necessary expenses in keeping and preserving" the property (Pol. Code, secs. 4290, 4300b), and we perceive no reason for holding otherwise. Furthermore, the owner of the property could have avoided the expense by having the attachment released under bond, or by applying to the court for an order of sale, as we have already pointed out. It appears from the affidavits that at the time of the attachment an inspection was made by the respondent, and disinterested parties in his behalf, for the express purpose of obtaining an estimate of the cost of tearing down, *743 moving, and storing the property in one place so as to lessen the expense. These estimates ranged from twelve hundred and fifty dollars to fifteen hundred dollars. It also appears from the affidavits of the respondent and his attorney that the latter advised the former against the removal of the property as it was located on oil placer claims upon which assessment work was being performed.
3. The final point made by the appellants is that "the allowance for keepers' fees was not legal, because a large portion of the property attached was real property." It is contended that the frame house, derrick, and rigs were affixed to the soil and became a part of the realty. The appellants insist, therefore, that the property should have been attached by filing with the recorder copies of the writ, a description of the property, and notice of the attachment, and by leaving similar copies with an occupant of the place, if there was one; if not, then by posting the same in a conspicuous place on the property attached. (Code Civ. Proc., sec. 542, subd. 1.) It is asserted in their affidavits that the expense of moving the balance of the attached property would have amounted to only a few hundred dollars, and that consequently the sole legal course for the sheriff to have pursued was to place the personalty in storage and attach the fixtures as realty. But it clearly appears that, notwithstanding the property was more or less of a ponderous nature and physically annexed to the soil, it was to a large extent capable of being dismantled and carted away. As is said in Nisbet v. Clio Min. Co.,
We think the facts and circumstances shown amply justified the court in denying the motion of the appellants. But inasmuch as an appeal from the judgment against J.M. Danziger and one from the order denying his motion for a new trial are now pending in the district court of appeal from the second district (L. A. 3785, 2d App. Dist. 2066), the enforcement of the judgment herein will stand subject to the outcome of the said appeals.
The order is affirmed.
Shaw, J., and Sloss, J., concurred. *744