Maze v. Langford

KERRIGAN, J.

This is an appeal from a judgment and from an order denying defendants’ motion for a new trial, in an action for damages against the sheriff of Santa Clara county and his surety, for turning over to one E. Y. Burke $500 belonging to the plaintiff.

The salient facts of the case are as follows: E. V. Burke, on May 8, 1908, obtained a judgment against E. R. Maze, the plaintiff herein, for the sum of $500 and costs. On the same day Burke procured to be issued thereon a writ of execution, directed to the defendant Langford as sheriff, commanding him to satisfy the said judgment out of the property of E. R. Maze, defendant in that case, the plaintiff here. The next day a deputy sheriff proceeded to Mountain Yiew, where E. R. Maze with a partner was engaged in the hardware business, and demanded the amount of the judgment, threatening that if it was not at once paid he would levy on the stock of hardware in the store belonging to E. R. Maze and his partner, and put a receiver in charge. Before the deputy sheriff had taken any definite action in the matter and later in the day he was told by E. R. Maze that the court in which said action was pending had made an order staying the execution. Such was the fact, but the sheriff’s office had not been notified of such order, and the deputy sheriff therefore insisted on proceeding with the execution, whereupon E. R. Maze, in order to prevent said hardware business from being placed in the hands of a receiver, turned over to the deputy sheriff on the execution the amount demanded, with the understanding and under such circumstances that it was not and.cannot be regarded as a payment of or satisfaction of said judgment. On Monday, May 11th, E. R. Maze, by his attorney, delivered to Lang-

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ford, the sheriff, a copy of the order staying execution. Thereafter on the fourteenth day of May, E. R Maze took an appeal from said judgment, and filed his undertaking on appeal and to stay execution, the affidavit to said undertaking containing no. allegation that the sureties therein named were freeholders or householders. Thereafter both parties demanded of the sheriff in writing that he deliver to each of them the money in question, and E. R. Maze attached to his demand a copy of said undertaking. Subsequently, on May 15th, the court, having set aside its purported order suspending the execution of said judgment, the sheriff paid over the $500 to E. Y. Burke.