Johns v. Trick

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This was a motion by the plaintiff, Sheriff of Tehama County, made on notice under Sec. 224 of the Practice Act, for a judgment against the defendant as a defaulting bidder at a Sheriff’s sale of property on execution, issued on a judgment rendered in favor of the defendant against one Canble. The averments of the motion show that the property was first sold to the defendant for $4,706 ; that he refused to pay the same on demand by the Sheriff; that the property sold on a re-sale for only $2,787 54, leaving a deficit of $1,918 46, which the Sheriff had demanded of the defendant, and which he refused to pay. The defendant demurred to the motion on the ground that it did not aver in specific terms that any “.loss was occasioned thereby,” in the language of the statute. The Court below sustained the demurrer, and rendered a final judgment for costs against the Sheriff, from which he appeals. The motion contains the substantial averments required in a case of this [513]kind. It is not necessary to use the precise language of this statute. The facts stated show clearly a loss of $1,918 46 in averring the amount bid at each sale, the difference between the two being a loss, because the bid at the last sale was much less than at the first sale. If the amount of the last sale had equaled or exceeded that of the first, it would have shown that there was no loss.

The judgment is reversed, the demurrer is overruled, and the defendant is required to file an answer to the motion within ten days after notice of the filing the remittitur in the Court below.