Servanti v. Lusk, No. 3,076

No. 3,076 | Cal. | Jan 15, 1872

By the Court,

Crockett, J;:

The wagon, horses, and harness seized under the plaintiff’s attachment, were exempt from execution, and were none the less so because the defendant in the attachment owned them, and used them in common with a stranger to the action. The Sheriff violated his duty in refusing to release them from the attachment on the demand of the defendant therein, after being informed and having ascertained that they were exempt from execution. In exacting the undertaking sued upon as a condition on which he would release the property from the attachment, he exceeded his authority and violated his duty. So far as the undertaking was founded upon the release of the wagon, horses, and harness, it was without consideration and void, inasmuch as it was the duty of the Sheriff to release them without an undertaking. But it is said that a leasehold interest of the- defendant in the attachment in a parcel of land was also attached, and that this also was released on receiving the undertaking, and it is claimed that this was a sufficient consideration to support it.

It is conceded, however, that a portion of the consideration for the undertaking was the release of the wagon, horses, and harness, and the Sheriff having exacted the undertaking as a condition on which he would release any of the property, we must presume, in support of the judgment, that the undertaking was exacted by the Sheriff under color of his office, and in violation of law, before he would consent to release the wagon, horses, and harness. This fact was distinctly averred in the answer, and an issue tendered upon it, and though there is no distinct finding on this point, it is- well settled in this Court that all facts within the issues not expressly found, and not inconsistent with the other findings, are presumed to have been found in accordance with the judgment. Assuming the implied findings on this point to have been in accordance with the averments of the answer, it would appear that the Sheriff, with the consent and approval of the plaintiff, illegally and fraudulently exacted the undertaking, under color of his office, as a condition upon which he would release the wagon, horses, and harness, well knowing that they were not subject to execution. If these be the facts, as we must assume they were, the undertaking is void.

Judgment affirmed.

Mr. Chief Justice Sprague and Mr. Justice Wallace did not participate in this decision.