Lazarus v. Byrnes

CHIPMAN, P. J.

This is an action to recover damages for the alleged conversion of certain personal property of which plaintiff alleges that on September 11, 1913, and for a long time prior thereto she was the owner; that on said mentioned day defendant Byrnes, as sheriff of said county, “wrongfully took and carried away and converted and disposed of said personal property, under the purported authority of a writ of execution”; “that the aforesaid purported writ of execution was not directed against this plaintiff or any property, real or personal, of this plaintiff”; that this plaintiff “is a stranger and not a party to the suit wherein said purported writ of execution was issued”; that said Byrnes, as said sheriff, was without authority to seize, take, or sell said personal property; that by reason of said act plaintiff has been damaged, etc. By proper averments the said sheriff’s bondsmen are made parties defendant.

A general and special demurrer was overruled and defendants answered: Alleged that on November 4, 1910, a judgment was duly given and made in the justice’s court of Big River Township, county of Mendocino, whereby it was adjudged that certain named persons, plaintiffs in the action,'have and recover judgment against M. D. Nolan for the sum of $238 and costs; that on September 11, 1913, an execution was duly issued out of said justice’s court, directed to the sheriff of said county, Avhereby said sheriff was commanded to make the amount of said judgment out of the property of said Nolan; that defendant Byrnes, acting under the written instructions from plaintiff’s attorneys in said action and upon the aiithority of said writ, did take into his possession the personal property mentioned in said complaint and did sell the

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same; that -all of said property then was and for a long time prior thereto had been the property of said Nolan; that said, defendant sheriff, as aforesaid, sold said property at public auction, and after deducting the expenses of said sale, applied the proceeds thereof in satisfaction of said judgment; that “plaintiff did not previous to said sale nor for more than five months thereafter claim the property ... or any part thereof as her property by a written claim verified by her oath . . . setting out her right to the possession thereof and served the same upon the said sheriff.”