13 Or. 358 | Or. | 1886
The appellants commenced an action in the court below against the respondent for an alleged breach of official duty as sheriff of said county. In their complaint therein filed they set forth that theretofore they commenced an action in said Circuit Court against one T. W. Stapleton, to recover a judgment against him for $336.45, and procured to be issued therein a writ of attachment against the property of the said Stapleton, which was duly delivered to the respondent, as such sheriff, for service; that at the time, said Stapleton owned and possessed personal property in said county, not exempt from execution, and subject to levy under said writ, sufficient to fully satisfy such demand; that said respondent, as such sheriff, under and by virtue thereof, did seize, levy upon, and take into his posses
■ The appellants attempted to prove facts to maintain the issues upon their part, but were not allowed to do so by the court, upon the ground, as we understand, that the appellants’ judgment and order of sale did not describe the property to be sold with sufficient certainty, and that this was a waiver of the lien of attachment.
It necessarily follows from these several provisions of the statute that it is the duty" of the sheriff, in such a
The questions to be tried in this case were, whether or not the respondent, as such sheriff, performed his duty in regard to the service and return of the writ of attachment, as prescribed by the statute; and if he did not, what damages resulted to the appellants in consequence of his neglect in that respect. The respondent’s counsel dwelt with much apparent earnestness upon the fact that the writ of attachment was only to be returned when it should be fully executed; but it must be understood that it is fully executed when the sheriff has attached all the property of the defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, together with costs and expenses; and he is required to do this with
The case will have to go back, and the issues tendered by the parties in their pleadings be tried. The appellants’ action is not barred or affected in consequence of any imperfect description of the property attached in the judgment or order for its sale. The question is, whether the respondent improperly neglected to make a return of the writ of attachment, and turn the property attached over to his successor, and whether the appellants were damaged in consequence of such neglect.