City and County of San Franciso v. McAllister

Thornton, J. Defendant Matthew Nunan was for two terms, covering a period extending from the first Monday in December, 1875, to the first Monday in December, 1879, the sheriff of the city and county aforesaid. He executed for this period the .usual official bonds, with sureties. During the same period Gideon M. Berry was a deputy of said Nunan, sheriff, appointed by him, to act as book-keeper, and was charged inter alia with the receipt of certain moneys for his principal. He became a defaulter with regard to these moneys. Nunan had required of him a bond with sureties for the faithful discharge of his duties of deputy and book-keeper. The sureties to this bond are defendants James Adams and Samuel Platshek. Berry’s default was covered by this bond, and suit was brought on it by Nunan, and judg[247]ment recovered by Mm against the sureties for the sum of $13,108.32. This judgment was on the 3d of March, 1883, assigned by Nunan to the defendants McAllister and Bergin, for a sum of money due them by him, for services rendered him as attorneys and counselors at law. It appears that a portion of the moneys for which Berry defaulted was for commissions and fees collected by him for his principal, and which it was the duty of Nunan as sheriff to pay into the treasury of the city and county above named.

McAllister and Bergin notified Adams and Platshek of the assignment by Nunan of the above-mentioned judgment to them, and filed it with the papers in the action of Nunan against Adams and Platshek.

The plaintiff herein, on the 21st of July, 1881, commenced an action on his official bonds against Nunan and the sureties thereon, in the superior court of the city and county of San Francisco, to recover a portion of the commissions and fees above mentioned; and on the 9th of February, 1885, commenced another action on his official bonds against Nunan and the sureties thereon, to recover another portion of the commissions and fees above mentioned.

On the 9th of February, 1885, the plaintiff caused writs of attachment to be issued in the actions just mentioned, which were by Peter Hopkins, sheriff of the city and county aforesaid, duly served on Adams and Platshek, the judgment debtors above mentioned, with a notice that the moneys in their hands belonging to Nunan, and debts due by them to the same, were attached in pursuance of the writs so served. Adams and Platshek refused to pay the sheriff the moneys due upon the said judgment, and informed him of the notice to them of the assignment of the judgment to McAllister and Bergin.