Oaks v. Scheifferly

Sharpstein, J. Preston recovered a judgment against Jones, and caused an execution to issue thereon. The writ was placed in the hands of the respondent herein, who was, at that time, sheriff of San Luis Obispo County. He levied on wheat and barley which one Meherin claimed and demanded as his property. Thereupon Preston as .principal, Seheifferly and Payne as sureties, executed a bond in the sum of seven hundred [479]dollars, which, after reciting the above facts, and that Preston, notwithstanding the claim and demand of Meherin to have the property delivered to him, insisted on the retention of the property by the sheriff under said levy, concludes as follows:—

“ Now, therefore, the condition of this obligation is such that if the said R. M. Preston, J. J. Scheifferly, and George M. Payne, their heirs, executors, and administrators, shall well, truly indemnify and save harmless the said sheriff, his heirs, executors, administrators, and assigns, of and from all damages, expenses, costs, and charges, and against all loss and liability which he, the said sheriff, his heirs, executors, administrators, or assigns, shall sustain or in any way be put to, for or by reason of the levy, taking, sale, or retention by the said sheriff in his custody under said execution, of the said property claimed as aforesaid, then the above obligation to be void; otherwise, to remain in full force and virtue.”

The respondent then proceeded under the execution and levy and sold the property as the law directs, and paid the proceeds of the sale to Preston. Meherin sued respondent for the value of the property, and on the eighteenth day of December, 1880, recovered judgment therefor. Respondent appealed from that judgment to this court, which, on the 25th of May, 1885, affirmed the judgment. (Meherin v. Oaks, 67 Cal. 57.) The respondent paid the judgment, and on the 4th of September, 1885, commenced this action. These facts appearing upon the face of the complaint, appellants demurred thereto, on the grounds that the same did not state facts sufficient to constitute a cause of action, and that plaintiff’s action was commenced more than four years after his cause of action accrued, and his cause of action is barred in virtue of the statute of limitations, by provisions of sections 312 and 337 of the Code of Civil Procedure of California.

The demurrer was overruled, and defendant Scheifferly [480]