Noble v. Desmond

Thornton, J. In an action brought by plaintiff against one Bruce, an attachment was regularly sued out and placed in the hands of the defendant as sheriff of the city and county of San Francisco, who levied it upon a lot of cattle as the property of Bruce, and took them into his possession. One Goss claimed the property, and sued the defendant in an action of claim and delivery, usually with us styled replevin, to recover the cattle seized under the writ. Goss made affidavit, and executed the usual undertaking with sureties, as required by the statute (Code Civ. Proc., secs. 510-519), and upon the receipt of the affidavit, undertaking, and requisite notice, the coroner took the cattle from the possession of the defendant. The latter did not execute the counter-undertaking, as required by section 514 of the Code of Civil Procedure, nor did he give notice that he excepted to the sufficiency of the sureties (see Code Civ. Proc., sec. 513,) and the coroner delivered the cattle to Goss. It appears that Goss, not long after receiving possession of the [332]property, sold it, and left the state. The action brought by Goss was tried, and the usual judgment in replevin passed for the defendant. The plaintiff herein recovered judgment against Bruce, on which he has been unable to make anything. Bruce had no other property at the time the attachment was sued out, except the cattle above mentioned. The judgment against Goss has not been enforced, nor any part of it paid or satisfied.

It is claimed that Goss, and the sureties on the undertaking given by him, were insolvent when it was executed, and still continue insolvent; that the sheriff (Desmond) failed to except to the sufficiency of the sureties on the undertaking; that the sheriff did not reclaim, or attempt to reclaim, the property levied on, and did not notify either plaintiff or his attorneys of the commencement of the action against him by Goss, or that any undertaking had been given by Goss.

The evidence tends to show that the sureties were insufficient at the time they executed the undertaking, and the jury must have found such to be the fact in rendering a verdict for plaintiff. On the evidence appearing in the statement, we cannot say that it was insufficient to sustain the verdict. It was for the jury to say what weight the evidence was entitled to; and as it tended to show that the sureties were insolvent at the time mentioned, we cannot interfere with the judgment or order in this case on that ground. That the sheriff did not except to the sureties, or give a counter-bond, is not disputed. And we are of opinion that the plaintiff knew nothing of the action brought by Goss, or of his having executed the undertaking above mentioned, until after the property had been delivered to Goss, when it was too late to except to the sureties, or execute a counter-undertaking.