Mazuran v. Finn

WASTE, P. J.

This is an application for a writ of mandate directing respondent, as sheriff, to sell certain personal property levied upon by him under execution. The petitioner, as plaintiff in an action against Frank F. Akaeich and George Dimmich, was awarded judgment in the superior court of the city and county of San Francisco in the sum of $5,000, with interest and costs, no part of which having been paid, the respondent, under instructions, levied a writ of execution upon a linotype machine, and its accessories, alleged to belong to the judgment debtor, Akaeich. John H. Leighton and E. E. Carreras served on the sheriff a

[657]

written claim, verified by oath, setting out their right to the possession of the property. The petitioner thereupon indemnified respondent against the third party claim by an undertaking, executed as provided in section 689 of the Code of Civil Procedure. The sheriff accepted and approved the bond and proceeded to advertise the property for sale.

Before any sale could be had Leighton and Carreras, assuming to act under the provisions of sections 710 to 713½, inclusive, of the Code of Civil Procedure, executed to the sheriff a bond in double the value of the property claimed by them and demanded its return. The respondent thereupon refused to proceed with the sale, on the ground that the property was released from the lien and levy of the execution by reason of the undertaking last given. The petitioner has applied to this court for a writ of mandate to compel the sheriff to sell the property, claiming that the refusal to do so is unwarranted for several reasons. His principal contention is that when third parties have advanced their claims, and the judgment creditor has given an undertaking indemnifying the sheriff, the claimants may not afterward prevent a sale by themselves filing a bond, and securing a release of the property from the levy of the execution.

So far as we are aware this is the first time sections 710 to 713½, inclusive, of the Code of Civil Procedure have engaged the attention of any appellate court, although section 689 has been under consideration a number of times. By its terms the latter section provides that if property levied upon is claimed by a third person by a written claim verified by oath, setting out his rights to possession, served upon the sheriff, the sheriff is not bound to keep the property unless the plaintiff, or the person in whose favor the writ of execution runs, on demand, indemnifies him against such claim by an undertaking, with at least two good and sufficient sureties, in a sum equal, to double the value of the property levied upon. This section, based on the old Practice Act of California (sec. 218), was enacted as a part of the Code of Civil Procedure in 1872. It then provided that if the property levied upon was claimed by a third person the validity of the claim should be tried by a sheriff’s jury of six persons. The section was amended in 1891 to