Lewis v. Johns

California Supreme Court Jul 1, 1868Published

Before: Sanderson

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Holding. The court held that attaching creditors who provide indemnity bonds to a Sheriff to retain and sell property after being notified of a third-party ownership claim are joint trespassers liable for the wrongful taking of that property.

Issues

Whether attaching creditors who provide indemnity bonds to a Sheriff for the retention and sale of property are joint trespassers with the Sheriff.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The sole question here is, whether the appellants were joint trespassers with their co-defendants. We are unable to perceive upon what ground it can he held that they were not.”

“If the property was not seized in the first instance by their direction, it was subsequently retained and sold by their direction and for their benefit, and the benefit actually received.”

Synopsis

Joint Trespassers Under Legal Process—Liability op.—In an action by the parties whose property has been wrongfully taken under legal process, all who join or participate in the trespass are jointly liable as joint trespassers.

Idem.—Plaintiff's property was illegally seized by defendant J., as Sheriff, by levy under writs of attachment against E. J. 0., sued out by the other defendants, D. & S., and L. & G-.; the levy under the writ of D. & S. taking precedence only because it first came to the hands of J. At the time of making said seizure J. acted without special directions from the other defendants, but immediately thereafter all the defendants were duly notified of plaintiffs' claim to said properfcy, and that a redelivory was demanded by plaintiffs of J., whereupon D. & S., and L. & G. executed and delivered separately to J. bonds of indemnity against the plaintiffs' said claim. The property seized, which consisted of grain in field in process of harvesting, was sold as perishable by J., whereby it became lost to plaintiffs, and the proceeds of the sale were applied to the satisfaction in full of the attachment debt of D. & S., and the residue to the satisfaction, in part, of the like debt of L. & G., for both of which lawful judgments against E. J. C, had in the meantime been recovered. Held, that all the defendants were joint trespassers, and jointly liable to plaintiffs for the damages sustained.

By the Court, Sanderson, J.: There is a marked difference between this case and that of Davidson v. Dallas, 8 Cal. 227; 15 Cal. 79. That was an action by an assignee of the Sheriff upon tlie indemnity bond which was given by the second attaching creditor. This is an action by the parties whose property was wrongfully taken, against the Sheriff and both attaching creditors, as joint trespassers.

It was substantially conceded by the Court, in the former case, that the attaching creditors were joint trespassers as to the injured party, but it was held that the same rule did not apply as between them and the Sheriff' in an action upon the indemnity bonds. The Court said: “It is conceded that in a case of joint trespass, the party injured may sue one or all of the trespassers, and each one will be liable for the whole damages; but a satisfaction made by any one of them will be a discharge of all. But in this case, as between the Sheriff and his indemnitors, the same rule does not apply. He does not bear toward them the same relation that the injured party does toward joint trespassers. As between the Sheriff and the attaching creditors, their liability to him arises under contracts allowed by law. In those contracts there were mutual covenants. He bound himself to detain the property, first for Gibson (the first creditor,) and second for Dallas (the second,) with the condition that this order was subject to be changed by the ultimate results of the suits.”' (Page 255.)

It was accordingly held—First, if, in such a case, both attachments are ultimately sustained and the whole proceeds of the property absorbed by the judgment of the first creditor, the Sheriff must look to him alone for indemnity; second, if the first attachment is defeated and the second sustained, he must look solely to the second attaching creditor for his entire indemnity; third, if both are sustained and the property sells for more than sufficient to satisfy the [634]first, the Sheriff is entitled to recover from each of the creditors in proportion to the amount of the proceeds of the sale paid by him to them respectively; and, fourth, if both attachments are defeated, the responsibility of each creditor is in proportion to the amount for which he attached, unless the value of the property is greater than the aggregate amount of both attachments, in which ease the first creditor’s liability to the Sheriff is equal to the amount for which he attached, and the second creditor is responsible for the whole of the remainder.

Whether this is sound doctrine, need not he considered here. It was very seriously doubted in the second appeal in the same case. (15 Cal. 79.) We refer to the case merely in response to its citation by counsel, and solely for the purpose of showing that it is not in point, and has no direct application to the facts of the present case.

Lewis v. Johns

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