Alexander v. Wilson

VAN DYKE, J.

The plaintiff, as a creditor of the firm of Anderson & Berry, doing business in Lassen County, and as assignee of other creditors of said firm, commenced action against said firm September 19, 1899, in the superior court of Lassen County to recover the sum of $4,686.96, and at the same time procured an attachment, and placed the writ in the hands of defendant Wilson, sheriff of said Lassen County, who, as said sheriff, thereupon attached certain property belonging to said Anderson & Berry, and made return of thp writ October 9, 1899. On November 29, 1899, judgment was entered in said action in favor of plaintiff and against defend

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ants therein, Anderson & Berry, for the sum of $3,416.15 and costs; and on the same day execution was issued on said judgment and placed in the hands of said Wilson, as sheriff, who levied the same upon the attached and other property of the judgment debtors therein, and advertised the sale of said property to take place December 9, 1899. Said defendant Wilson, as such sheriff, for the reasons hereinafter stated, failed to sell the property levied upon or to realize any sum therefrom, or to make return of the writ within the time specified. And said plaintiff brings this action against said defendant Wilson, as such sheriff, and the Fidelity and Deposit Company of Maryland, as surety on his official bond, for the sum of four thousand dollars damages.

Findings and judgment went for the defendants in the court below, from which plaintiff appeals upon a bill of exceptions. The findings of the court sustain the defense to the action interposed by the defendant Wilson, and they are in substance as follows: That after the levy of the execution issued upon the judgment recovered in the action of Alexander against Anderson & Berry in Lassen County,—to wit, on the sixth day of December, 1899,—said Anderson & Berry, by an order and judgment of the district court of the United States, in and for the northern district of California, were duly declared and adjudged to be bankrupt within the intent and meaning of the act of Congress relating to bankruptcy; that two days thereafter,—to wit, on the eighth day of December, 1899,—the said order and judgment was duly served upon said defendant Wilson, and on the eleventh day of December, 1899, the defendant Wilson readvertised for sale under the execution issued on the judgment obtained by the plaintiff against said Anderson & Berry, already mentioned, property held by him thereunder, said sale to take place on the eighteenth day of December, 1899, but that on the fourteenth day of December, 1899, the district court of the United States, in and for the northern district of California, by an order and judgment duly given and made, restrained and enjoined the defendant Wilson from selling any of said property, setting forth the said judgment and order