Buffandeau v. Edmondson

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

This was a suit brought against the defendant, Sheriff of Alameda county, for proceeding to sell property of plaintiff, which the defendant had levied on by virtue of an execution; the plaintiff claiming that before the sale an injunction had issued at the suit of the plaintiff enjoining such sale. The complaint also avers, that the plaintiff had been discharged from the debt on which the execution issued, by virtue of certain insolvent proceedings. Upon the trial, a nonsuit was ordered. The bill on which the injunction was granted was filed by plaintiff against one New, and the injunction [441]restrained, by its terms, New, his agents and servants, from proceeding to sell under the execution. A copy of the injunction and of the complaint was served upon the Sheriff before the sale, but he proceeded, nevertheless, to make the sale.

It is unnecessary "to consider whether the bill of complaint showed a proper case for an injunction, or whether the injunction was regularly granted or not. It was enough for the Sheriff to know that a Court of competent jurisdiction had made the order, and then it became his duty to obey it. It is no part of a Sheriff’s duty to sit in judgment upon judicial acts, and reform the errors or revise the orders of the Judge. As'the execution is only an order of the Court, it would be strange if the Sheriff were held under onerous penalties to obey its commands, and yet be absolved from the duty of yielding obedience to an order made directly by the Judge, touching the same subject matter. The injunction, so long as it remained in force, operated as a supersedeas to the execution; the legal authority to sell the property was withdrawn by the same authority which had given it, to wit: by the act of a competent Court; and the Sheriff had no more legal justification for his act than if he had proceeded to sell after the execution had been quashed. The injunction in this case had direct effect upon the process itself, and though, in order to charge the Sheriff, it was necessary that he should have notice of the order, yet after such notice, his act was in defiance of law, and in contempt of the Court. It is true, that for such conduct the law has provided a remedy, by the punishment of the offender; but this provision is more for the sake of the public than for the redress of the private grievance involved in such delinquency. As the only authority of the Sheriff to levy and sell came from the execution, and as the injunction superseded the execution and withdrew the authority, it follows that the Sheriff is no better protected than if he were a naked trespasser.