138 P. 907 | Nev. | 1914
By the Court,
This is an original proceeding in mandamus. The petitioner was the plaintiff in an action for claim and delivery in the district court of Humboldt County. After the regular commencement of his action, by the filing of complaint and the issuance of summons, petitioner, in compliance with chapter 20 of the civil practice act of this state, claimed the delivery of certain personal property enumerated in his petition. In accordance with his claim he made an affidavit setting forth the essential requisites under the civil practice act, and thereby required the respondent, as sheriff of Humboldt County, that being the county in which the personal property was situated, to take the personal property from the defendant.
It is admitted by the pleadings in this case that all of the steps necessary to justify the sheriff in taking possession of the property from the defendant were accomplished by the petitioner, as plaintiff in the case below. From the petition and answer in this proceeding it appears that the respondent, as sheriff, nominally took possession of the personal property.
Petitioner alleges that more than five days elapsed and no notice was served on him, as plaintiff in the action in the lower court, by respondent, or by any other person, that defendant required the return of the personal property, or that the defendant had given to the respondent
In the answer filed by respondent it is claimed that the defendant, in the action in the lower court, made demand and delivered an undertaking to respondent within five days from the date of the taking of the property by respondent, and that thereafter the sureties on the undertaking qualified before a notary public in and for the county of Humboldt. Respondent further states that the undertaking was approved by him in his official capacity as sheriff, and that after the delivery of the undertaking to respondent he returned the property to defendant. Having surrendered possession of the property, respondent alleges that he has not now legal control thereof.
As appears from the record in this case, the defendant in the lower court did not except to the sufficiency of
Section 5129 (section 187 of the civil practice act) prescribes: "At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, in gold Coin of the United States, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for payment to him of such sum, in gold coin of the United States, as may for any cause be recovered against the defendant. If a return of the property be not so required within five days after the taking and serving of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 192.”
Section 5130, being section 188 of the civil practice act, prescribes: "The defendant’s sureties, upon notice to the plaintiff of not less than two or more than five days, shall justify before the judge or the clerk in the same manner as upon bail on arrest; and upon such justification, the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant’s sureties until they justify, or until the justification is completed or expressly waived, and may retain the property until that time. If they or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.
Under the provision of the statute quoted above, where
After demand is made by the defendant for the return of the property and an undertaking is filed by him, should the plaintiff expressly waive justification of the sureties on the undertaking, such waiver, when filed and presented to the sheriff, would have the same force and effect as though the sureties had justified, and the sheriff would be authorized to restore the property to the defendant.
The Supreme Court of Montana, in a proceeding analogous to the one at bar, and under statutory provisions the same as ours, said: "If we are to arrive at
The interpretation of the statute as set forth in the case of Johnson v. Collins, supra, we believe to be the correct one, and being applicable to the matter at bar, and being under identical statutory provisions, it is our judgment that the rule there annunciated is decisive of the matter under consideration. To the same effect is the holding of the Supreme Court of California, in the case of Ryan v. Fitzgerald, 87 Cal. 345, 25 Pac. 546.
The law requires the sheriff, upon the receipt of the affidavit, notice, and written undertaking provided for in section 5127, Revised Laws, to forthwith take the property described in the affidavit and retain it in his custody. The law presumes that the sheriff shall retain custody of the property until he delivers the same to the plaintiff or until he delivers the same to the defendant, if the latter makes demand for the return thereof and complies with the provisions of the statute heretofore discussed.
In an action for claim and delivery after the officer has taken possession of the property, and between that time and the time it is delivered to either of the parties to the action, the property is in custody of law. The wrongful delivery of the property to either party to the action does not relieve it from this rule. The sheriff, in an action of this kind, is charged under the law with the duty of ultimately delivering the property to. one of the parties to the litigation. (Welter v. Jacobson, 7 N. D. 32, 73 N. W. 65, 66 Am. St. Rep. 632.) The sheriff, in an action of this character, is charged under the law with the duty of finally delivering the property to one of the parties to the litigation. It follows, where the record discloses that the property, although wrongfully put out of the hands of the sheriff, is still within the county, the sheriff may, and it is his duty to, retake.the property.
Where, in an action in claim and delivery, the property is seized by a sheriff and afterwards released to the defendant upon a forthcoming bond, it is still in the custody
It is manifest from the record in this case that defendant, in the action in claim and delivery, failed to comply with the terms of the statute in that no notice was given to the plaintiff, and the sureties on the undertaking of defendant did not justify, as prescribed by section 188 of the civil practice act. In fact, on the part of the defendant, there was no compliance with the statute. It was therefore the duty of the sheriff, upon receipt of his lawful fees for taking and the necessary expenses for keeping, to deliver the property to the plaintiff.
It follows that the respondent in this case should immediately retake the property enumerated in the petition herein, or as much thereof as was enumerated in the affidavit and notice originally received • by him in the action in claim and delivery, and upon receipt of his lawful fees, at the time at which he delivered the property to the defendant, and the necessary expenses incurred by him up to that time, deliver the property to petitioner herein.
The writ as prayed for should issue. It is so ordered.