Bone v. Trafton

THE COURT.

This is an appeal from the judgment. In this case the trial court prepared an opinion, which correctly sets forth the facts and the law applicable thereto, and which, omitting what is said touching one point not necessary, we think, to a disposition of the case, we adopt as follows:

In this action plaintiff seeks to recover damages from the defendant, as sheriff, for the alleged wrongful sale of personal property under a writ of attachment, without having first tendered to plaintiff the amount of a chattel mortgage owned by plaintiff, and which plaintiff claims antedated said writ of attachment.

The decision in the case involves a question of law based upon the following facts, which are undisputed, viz.: On October 7, 1914, in an action filed in this court (the superior court of the county of Santa Cruz), entitled,

“Arbanasin

v.

Radovan,”

Radovan was sued for $370, and costs, alleged to be due for merchandise sold to him by assignor of Arbanasin. On the day the action was filed an affidavit and undertaking for attachment were also filed, and the writ of attachment was issued and placed in the hands of the sheriff for service. The writ was levied by the sheriff upon personal property, the title to which, so far as this action was concerned, was vested in Radovan free from encumbrance. On October 16, 1914, nine days subsequent to the levying of the attachment, Radovan executed and delivered to the plaintiff in this action, W. H. Bone, a chattel mortgage for $630 covering the attached property. The mortgage was duly recorded on October 17, 1914. Thereafter, on the same day, Radovan filed a notice of motion that he would, on October 23d, move the court to discharge the attachment, on the ground “that the undertaking required by law before the writ should issue was not accompanied by the affidavit of the sureties thereon and therein that they were freeholders or householders within this state.” Thereafter, to wit, on October 19, 1914, Arbanasin made and filed another affidavit and undertaking on attachment, and had issued thereon another writ of attachment, which was also placed in the hands of the sheriff for service. On October 23d, the day on which the motion to discharge

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