27 F.2d 74 | 9th Cir. | 1928
This was an action on the official bond of a sheriff to recover damages for failure on the. part of the officer to levy upon and sell certain personal property under an execution issued on a judgment in favor of the plaintiff below and against one Padilla, as judgment debtor. Prom a judgment in favor of the plaintiff, the defendant has sued out the present writ of error. In the view we take of the case, it is necessary to consider but two questions: First, did Padilla, the judgment debtor, have any interest subject to execution in a certain band of sheep and lambs? And, second, did the court below err in charging the jury as to the measure of damages for failure to levy upon and sell the real property belonging to the judgment debtor?
The facts concerning the sheep and lambs are as follows: On November 1,1923, the A.
The default charged against the officer was his failure to levy upon and sell a portion of the band of sheep and their increase in the possession of Padilla, under the above contract. The execution was placed in the hands of the sheriff on June 27, 1924, and the question presents itself: Did Padilla, the judgment debtor, have any interest m the sheep, or in their increase, which was subject to execution on that date, or at any time before a division was made, as contemplated by the contract ? It will be observed that the contract contains no words of grant or sale, and no language indicating a transfer of title, of either the sheep or their increase. Nor does the language of the contract indicate that the parties intended that the contract should constitute a present sale of the property or of any interest therein. Contracts such as this are not uncommon in the live stock sections of the country, and they have been uniformly construed as bailments, and not as sales. Woodward v. Edmunds, 20 Utah, 118, 57 P. 848; Turnbow v. Beckstead, 25 Utah, 468, 71 P. 1062; Wetzel v. Deseret Nat. Bank, 30 Utah, 62, 83 P. 570; Clay, Robinson & Co. v. Atencio, 74 Colo. 17, 218 P. 906; Robinson v. Haas, 40 Cal. 474; Freeman on Executions (3d Ed.) § 123. The court below erred, therefore, in refusing to instruct the jury that Padilla had! no interest in the sheep or their increase that was subject to execution, as requested by the plaintiff in error. For this, error the judgment must be reversed.
Error is assigned as to certain rulings of the court below concerning real property, but the complaint in the case affords no possible basis for a recovery of damages for failure to levy upon or sell real estate. In an action against a sheriff, or other officer, to recover damages for failure to seize sufficient property to satisfy an execution in his hands, the plaintiff must allege and prove that during the life of the writ the judgment debtor was possessed of property liable to seizure under it. Conway v. Magill, 53 Neb. 370, 73 N. W. 702. Here there was an entire absence of any allegation that the judgment debtor owned or possessed any real property, or that there was any breach of duty on the part of the sheriff in failing to levy upon or sell such property. Indeed, such a claim would be in a measure inconsistent with other allegations of the complaint, because the complaint alleged that the judgment debtor was possessed of personal property more than ample to satisfy the execution, and, if so, it was neither the right nor duty of the sheriff to levy upon or sell real property. Therefore any inquiry concerning real property was without the issues made by the pleadings. In view of our conclusion on these two questions, any consideration of the other errors assigned becomes immaterial.
The judgment is reversed, and the cause remanded for a new trial.