Tunstead v. Nixdorf

Works, J. There are two appeals in this case, both of which are presented and will be considered together. The facts are somewhat complicated, and are thus stated by counsel for the defendants in their brief, in support, of their appeal: The facts of this case are, that in July, 1876, the appellants Nixdorf and Schroeder commenced an action in the third district court of San Francisco against one James McCue to recover ten thousand dollars damages; that in December, 1877, judgment was rendered in favor of said Nixdorf and Schroeder, and against said McCue, for the sum of five hundred dollars; that on January 12, 1878, an execution on said judgment was issued, directed to the sheriff of Marin County, and placed in the hands of James Tunstead, plaintiff in this case, as such sheriff, with written instructions to levy upon and sell a certain stallion called “Copperhead,” the property of said McCue, in said Marin County; that said Tunstead, as such sheriff, did, on the twelfth day of January, 1878, by virtue of said execution and instructions, levy upon and take into his possession said stallion, and advertise him for sale; that after such levy, and after advertising the said stallion for sale, said McCue demanded that said Tunstead, as such sheriff, should release from said levy said stallion, as property of said McCue, as exempt from execution; that notice of said [649]demand of McCue was given by said Tunstead, as such sheriff, to said Nixdorf and Schroeder, who, as principals, and the other defendants herein, Jacob G. Gundlach and Henry Trorner, as sureties, executed the bond of indemnity set out in the complaint in this action; that on March 1, 1878, and before the sale of said stallion, said McCue commenced an action in the twenty-second district court of Marin County against said Tunstead, as such sheriff, to recover from said Tunstead the possession of said stallion, or its value, viz., one thousand dollars; that such proceedings were had in said twenty-second district court, in said case of McCue v. Tunstead, that on April 15, 1878, a judgment was rendered in favor of said sheriff, plaintiff herein, and against said McCue, for the possession of said stallion, and thereafter said stallion was returned to said sheriff; that on the third day of May, 1878, an alias execution was issued out of the twenty-third district court, San Francisco, in the said . case of Nixdorf and Schroeder against the said McCue, directed to and placed in the hands of the sheriff of Marin County, plaintiff here, and thereafter said stallion was levied upon and sold under said alias execution; that such further proceedings were had in said case of McCue v. T-wnstead, Sheriff, that judgment was entered in favor of McCue, and against said Tunstead, for the return of said stallion, or its value, viz., one thousand dollars, and certain costs; that said stallion was never returned to said McCue. This suit was therefore brought by plaintiff, upon the bond of indemnity set out in the complaint, to recover from the obligors therein the amount of plaintiff’s liability in the case of McCue v. Tunstead, and two hundred dollars counsel fees, paid in this suit. See also, for further particulars of the litigation resulting in this suit, McCue v. Tunstead, 65 Cal. 506; 66 Cal. 486; McCue v. Superior Court, 71 .Cal. 545.