Perrin v. McMann

Harrison, J. A writ of attachment, issued in the action of Sayre v. Perrin, was placed in the hands of the defendant, as sheriff of the city and county of San Francisco, for execution, and under it he levied upon certain personal property of the plaintiff herein, January 4, 1889, and placed the same in charge of a keeper. On the 7th of January a settlement of the controversy was effected by the parties to the suit, in which the plaintiff herein paid to Sayre the estimated costs of the action, and Sayre’s attorney filed with the clerk a direction to dismiss the action, “ without costs to either party.” A little after four o’clock in the afternoon of that day, Sayre’s attorney, Benson, went to the sheriff’s office for the purpose of directing a release of the property held under the attachment. The 7th of January was the first Monday of that year, and the day on which the term of office of the defendant herein as sheriff expired, and that of his successor, Laumeister, began. Laumeister had assumed his duties as sheriff, and taken possession of the office in the morning of that day, and Simon, to whom Benson handed the direction to release the property, had been the book-keeper of McMann during his term of office, but at its expiration had been appointed bookkeeper for Laumeister, and was then acting only for him. McMann, as the outgoing sheriff, retained in his custody [54]the property held by him under the attachment (Sagely v. Livermore, 45 Cal. 613), and the management of his unfinished business was in the charge of O’Connor, who had been his under-sheriff. When Benson handed the directions to Simon, he was told by Simon that McMann’s term of office had expired, and that he no longer represented him, but was merely the representative of Laumeister, his successor. Benson, however, insisted that the delivery to Simon was sufficient, and made no effort to find McMann, or any one who represented him. On the 9th of January, Benson and Sayre saw O'Connor and had some conversation about the release of the property, but O’Connor refused to release it, except upon the payment of the sheriff’s fees, which he then claimed to be thirty dollars. Benson, however, refused to pay more than eighteen dollars, the amount which had accrued at the date of the settlement and dismissal of the action. On the 11th of January, Benson gave to McMann a written notice to release, with which he refused to comply, except on payment of the fees, and thereupon this action was brought to recover five thousand dollors for the alleged trespass of the sheriff in retaining possession of the property for ten days. Judgment was rendered in favor of the defendant, and plaintiff has appealed.