Bailey v. Baker

CONREY, P. J.

The defendant appeals from a judgment directing the issuance of a peremptory writ of mandate requiring him, as sheriff of the county of Kern, to take possession of and deliver to the plaintiff certain described personal property. A former judgment, rendered in October, 1913, after an order sustaining a demurrer to the petition, was reversed by this court. For a statement of the facts alleged in the petition we refer to that decision.

(Bailey

v.

Baker,

28 Cal. App. 537, [153 Pac. 242].) The case was tried by the superior court in January, 1916, and the present appeal purports to be from a judgment rendered on February 9, 1916.

The court found the facts in accordance with the allegations of the petition; also that the personal property described in the petition was not claimed by any person other than the Security Trust Company; also that after having taken possession of the property as required in the claim and delivery proceedings in the action of

Bailey

v.

Security Trust Company,

the defendant sheriff redelivered the same to that corporation, although there had not been given to the plain

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tiff Bailey any notice of time and place when the sureties would justify, and the sureties did not justify upon the redelivery undertaking which had been given by the Security Trust Company to the sheriff. The court further found that the term of defendant Baker as sheriff expired in January, 1915, and that from and after that date one D. B. Newell was and is the duly elected, qualified, and acting sheriff of Kern County.

Appellant claims that the judgment should be reversed for the reason that a writ of mandate may not issue against an ex-sheriff to compel him to perform duties under process placed in his hands while he was sheriff. We have decided this question in another proceeding incidental to the present case.