97 Cal. 52 | Cal. | 1892
A writ of attachment, issued in the action of Sayre v. Perrin, was placed in the hands of the defendant, as sheriff of the city and county of San Francisco, for execution, and under it he levied upon certain personal property of the plaintiff herein, January 4, 1889, and placed the same in charge of a keeper. On the 7th of January a settlement of the controversy was effected by the parties to the suit, in which the plaintiff herein paid to Sayre the estimated costs of the action, and Sayre’s attorney filed with the clerk a direction to dismiss the action, “ without costs to either party.” A little after four o’clock in the afternoon of that day, Sayre’s attorney, Benson, went to the sheriff’s office for the purpose of directing a release of the property held under the attachment. The 7th of January was the first Monday of that year, and the day on which the term of office of the defendant herein as sheriff expired, and that of his successor, Laumeister, began. Laumeister had assumed his duties as sheriff, and taken possession of the office in the morning of that day, and Simon, to whom Benson handed the direction to release the property, had been the book-keeper of McMann during his term of office, but at its expiration had been appointed bookkeeper for Laumeister, and was then acting only for him. McMann, as the outgoing sheriff, retained in his custody
The defendant was not required to release the property levied on under the writ of attachment until his fees and expenses were paid. The sheriff is the agent of the plaintiff in levying an attachment, and the plaintiff cannot relieve himself from liability for the expenses incurred in such agency by a dismissal of the action, or a mere direction to release the property. Neither can the parties to the action, by an agreement between themselves for its dismissal, deprive the sheriff of his fees, or compel him to look to the solvency or caprice of the plaintiff therefor. Hence, for the purpose of protecting the sheriff against such contingency, it is provided by statute that he may retain the property levied on under an attachment until his fees and expenses are paid. (Stats. 1871-72, p. 778; Robinett v. Connolly, 76 Cal.
In the present case, the plaintiff herein paid to Sayre the money with which to defray the sheriff's expenses incurred in keeping the property attached, but when Benson went to the sheriff’s office to direct the release, he made no offer to make such payment, although he knew that the expenses had been incurred at his request; and there was no offer on the part of Sayre to make any payment until the 9th of January. At that date the expenses had amounted to thirty dollars, but he refused to pay more than eighteen dollars, which was the amount that had accrued on the 7th, when the settlement was effected.
When Benson went to the sheriff’s office to procure a release of the property, he was not only charged with public notice by virtue of the statute defining the sheriff’s term of office that McMann was no longer sheriff,
The judgment and order are affirmed.
Paterson, J., and Garoutte, J., concurred.