Walsh-Col Co. v. Emig

STURTEVANT, J.

The plaintiff sued the defendant as sheriff and his bondsmen for injury caused it by the alleged negligence of the sheriff. The trial court sustained the defendants’ demurrer to the plaintiff’s second amended complaint without leave to amend unless the amended pleading be presented in three days. At the end of seventeen days no amended pleading having been filed a judgment of dismissal was entered. From that judgment the plaintiff has appealed.

The point involved is whether the defendant sheriff acted negligently in accepting from the judgment debtors a certain undertaking and releasing "attached property under Code of Civil Procedure, section 540. The plaintiff’s complaint is very full and complete with two material exceptions, which will presently be noted. The material allegations involved are as follows: On October 21, 1931, the plaintiff commenced an. action against W. E. Cochran and others to recover $932.28, the price of merchandise sold and delivered. It obtained a writ of attachment and caused it to be served on the Broadway Grocery. Two days later Charles F. Harding, Esq., the attorney for the defendants W. E. Cochran and others, appeared at the office of the sheriff, the defendant in this action, and under the provisions of section 540 of the Code of Civil Procedure he tendered an undertaking and

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asked that the property so attached be released. The undertaking so tendered was not satisfactory to the sheriff. He, or Mr. Harding, made certain insertions and struck out certain words, and Mr. Harding initialed and dated the changes. As so changed the document was in words and figures as follows:

“WHEREAS, the plaintiff in the above-entitled cause has commenced an action in the aforesaid court against the above-named defendants for the recovery of nine hundred thirty-two and 28/100 dollars (932.28) and costs of suit;

“AND WHEREAS, Wm. J. Emig, sheriff of the county of Santa Clara, state of California, has attached and now holds certain property of defendant, W. S. Stephenson, under the authority of a writ of attachment issued in said action;

“AND WHEREAS, the said defendant W. S. Stephenson, is desirous of securing the release of said property from the operation of the attachment;