Brown v. Moore

Ross, J.: Application for a writ prohibiting the respondent from proceeding further in the matter of certain contempt proceedings against the petitioners.

From the verified petition it appears that during the month of April, 1882, sundry suits at law were commenced by divers persons against one Bartlett in the Justices’ Courts of Amador county to recover certain moneys alleged to be due from Bartlett to the respective plaintiffs in those suits. Judgment passed for the plaintiffs therein, on which executions were issued and placed in the hands of the petitioners in the present proceeding, who are constables in and for the respective townships of Amador county, in which are established the Justices’ Courts that rendered the judgments. The executions thus issued and delivered to the petitioners were by them, as such constables, levied on certain personal property of Bartlett. On the twenty-second of May, 1882, a judgment was entered in the Superior Court of Amador county against Bartlett and and in favor of one Post for a money demand; and on this judgment execution was issued on the same day and delivered to the Sheriff of Amador county. The-Sheriff, on the twenty-fourth of May following, levied his writ by delivering to. each of the constables (petitioners here) a copy of the same, together with a notice that all the property of the defendant (Bartlett) in their possession and under their control was. attached in pursuance of such execution, and demanded of them the possession of the property. The constables refused to deliver the property to the Sheriff, and the next day the latter returned his writ to the Superior Court, stating in his return, substantially, the facts as above given. On the twenty-seventh of May, on an affidavit made on behalf of Post, setting forth that the judgments rendered by the Justices’ Courts were void, the Judge of the Superior Court made an order [434]directing the constables to appear before him on the twenty-ninth of the same month, and show cause why they should not surrender the property to the Sheriff.

On the day named they appeared and filed their several affidavits, declaring that they were not debtors of Bartlett, nor had they any property of his other than that levied on and held by them under and by virtue of the executions first above mentioned. Thereupon the Judge refused to direct the constables to deliver the property to the Sheriff, but .on the same day entered an order in the following words: “ It is ordered, adjudged and decreed that plaintiff herein (Post) is authorized to institute an action against each of said persons) to wit: C. L. French, Constable, H. B. Templeton, Constable, W. H. Brown, Constable, and W. Payton, his Deputy Constable, to determine whether or not the said persons hold and retain said property adversely to the defendant—said suits to be commenced within thirty days from the date oí this order. And it is further ordered that each of said constables is given leave to sell the said property in their possession belonging to said defendant under the alleged executions in their hands, and they, and each of said constables is ordered to pay all the proceeds of said sales of said property to the Clerk of this Court within ten days after the sale thereof.”