Medley v. Hill

BARNARD, J.

This is an appeal from a judgment of dismissal, made and entered after a demurrer to plaintiff’s complaint had been sustained, without leave to amend.

The action was one against the sheriff of the county of Tulare, seeking to recover certain damages, together with the statutory penalty provided for in section 693 of the Code of Civil Procedure, for the alleged negligence of the defendant sheriff in failing to give proper notice of sale, as required by section 692 of the Code of Civil Procedure, in connection with the sale of certain lots previously sold under a writ of execution and purchased by this plaintiff. The plaintiff alleges that he brought a quiet title action after purchasing the lots, in which a judgment was rendered declaring the description used by the sheriff, in the aforesaid notice of sale, to be wholly inadequate and insufficient to identify the lots, and adjudging that the plaintiff received no title under the sheriff’s deed. It appears that the notice of the execution sale, containing the insufficient description, was posted on October 3, 1923; that the plaintiff bought in the real property and received a certificate of sale from the sheriff on October 29,

1923;

that the plaintiff received a sheriff’s deed to the property on October 29, 1924, and that a complaint to quiet the title to the property in question was filed by the plaintiff herein on December 3, 1924, and the judgment therein was rendered on December 2, 1925. The present action against the sheriff was commenced by the plaintiff on February 1, 1926. The demurrer to the complaint was sustained without leave to amend on the ground that the action was barred by the statute of limitations.

An action against a sheriff upon a liability incurred by the doing of an act in his official capacity and in virtue of his office or by the omission of an official duty is barred in two years. (Code Civ. Proc., sec. 339, subd. 2.) An action upon a statute for a penalty or forfeiture, when the action is given to an individual, is barred in one year. (Code

[311]

Civ. Proc., sec. 340, subd. 1.) In an action against a sheriff for negligence in the performance of his official duty, it is the date of the act and fact which fixes the time for the running of the statute of limitations.