Lambert v. McKenzie

HENSHAW, J.

Plaintiff, upon March 5,1893, commenced his action against the defendant, sheriff of the county of Napa, based upon section 98 of the County Government Bill of 1893 (Stats. 1893, p. 346), and alleged that the sheriff, under execution levy, had collected the sum of $609.08; that he had falsely returned that he had collected and received under the writ only the sum of $311.38; that demand had been made upon him, and he refused to comply with the demand, and judgment

[101]

was sought for the amount and twenty-five per cent, damages. On the tenth day of April, 1894, the plaintiff filed an amended complaint, containing two counts,—the first identical with the one above set forth, the second charging that, upon October 21, 1891, the defendant, by his negligence and carelessness, failed to collect under the writ the amount of money which should have been paid over, and, as a consequence of his negligence and carelessness, this amount which should have been applied upon plaintiff’s judgment debt was lost to him, and damages were accordingly sought for defendant’s negligence.

Defendant, for answer, made denial and pleaded the statute of limitations. The court in its findings exonerated the sheriff from the charge of negligence, and further found in his favor, upon the plea of the statute. The sufficiency of the finding as to negligence is attacked, but that upon the statute of limitations first invites attention. To its understanding, certain facts are essential. Plaintiff, in an action against Bailey, had caused an attachment to be levied on Bailey’s interest in a growing crop of grapes. Johnson was in possession of the vineyard, under a contract, by which he was to harvest and deliver the grapes and receive therefor one third of the proceeds after sale, the other two thirds going to Bailey. The grapes were sold to Carpy. Johnson, the tenant, harvested, hauled, and delivered a portion of the crop, and then abandoned his contract, whereupon, by agreement between the sheriff and this plaintiff, the former completed the work. It appears that, under the terms of the lease between Johnson and Bailey, Johnson, at his own charge and expense, was to have done the harvesting and delivering of the crop. Whether the sheriff had knowledge of this condition is a controverted matter, which does not, however, here call for determination. The value of the grapes delivered by Johnson amounted to $416; $497 was the value of the portion delivered by the sheriff. When settlement was made by the sheriff with Carpy, there was deducted the sum of $257, the cost of harvesting and delivery, from the two-thirds share of Bailey, which was under attachment. The contention of plaintiff was, and is, that the Bailey share was not liable for the expenses incurred in the picking and delivery of the crop, and that these expenses should have been charged against Johnson’s share, and that the sheriff should have taken $609, the two thirds of the total