Yuen v. McMann
Before: Haven
Synopsis
Action against Sheriff—Replevin of Property Taken under Execution— Damages for Detention—Parties—Sureties on Official Bond—The sureties upon the official bond of a sheriff are properly joined as parties defendant in an action against the sheriff for the recovery of personal property wrongfully taken under execution by him in his official capacity, and of damages for its wrongful detention.
Id.—Waives of Objection.—An objection that the sureties upon the official bond of a sheriff are improperly joined with the sheriff in an action against him, is waived by a failure to demur to the complaint upon that ground.
Id.—Cause of Action against Sureties—Damages.—A complaint against a sheriff and his sureties which alleges that the sheriff as principal and the other defendants as sureties made and delivered his official bond as sheriff, by which the defendants became jointly and severally bound for the faithful performance by the sheriff of his official duties, and then proceeds to state the alleged wrongful act of the sheriff in his official capacity for which damages are sought, is sufficient to show a liability upon the part of the sureties.
Id.—Liability of Sureties.—The sureties on the bond of the sheriff, by the terms of the bond, became, liable to respond in damages in a sum not exceeding the amount specified therein for any wrongful act or default of their principal in his official capacity.
Id. — Evidence—Offer of Sheriff to Return Part of Property. — In an action against a sheriff and the sureties upon his official bond to recover property seized under execution, with damages for its detention, letters of the sheriff offering to return part of the property sued for are properly excluded.
Id.—Effect of Stay Bond upon Appeal—Duty of Sheriff to Release Property Seized under Execution—Justification of Sureties.—Under section 946 of the Code of Civil Procedure, which provides that the effect of the perfecting of an appeal and the giving of an undertaking to stay the execution of the judgment or order appealed from is not only “ to stay all further proceedings in the court below upon the judgment or order,” but also to “release from levy property levied upon under execution issued upon such judgment,” it is the duty of the sheriff to release from levy all property taken under execution upon notice of the filing of the notice of appeal and the giving of the bond to stay execution, regardless of any question as to the sufficiency or insufficiency of the sureties, and he cannot retain possession until the sureties have justified, or until their justification has been waived.
Id.—Retaining Pbokebty fob Eees and Disbuesements—Unlawful Detention aeteb Stay Bond — Kbepebs' Fees—Demand bob Fees — Oeeeb to Betubn Released Pbopebty.—A sheriff who levies upon personal property and who incurs expense for keepers’ fees while unlawfully retaining it in his possession, is not entitled to hold the property so levied upon as security for such keepers’ fees, and he cannot justify his retention of property, the levy upon which is released by a stay bond, because of the non-payment of his fees and disbursements incurred prior to the release, unless he has demanded the payment of such fees and disbursements, and offered to return the property upon payment of the amount of fees for which he claimed the right to retain the property.
De Haven, J. This is an action against McMann, as sheriff, and his co-defendants as sureties, upon his official bond, to recover possession of certain personal property taken by him as such sheriff under a writ of possession issued upon a judgment obtained by one Lee Chuck v. Quan Wo Chong Co., in an action of unlawful detainer, and by which writ the said defendant was commanded to place the plaintiff in that action in possession of the premises described therein, and to make out of the personal property of plaintiff’s assignors the amount of damages recovered by the judgment upon which the writ was issued. The plaintiff brought this action as the assignee of Q,uan Wo Chong Company, and recovered judgment for the return of the property, or its value, five thousand dollars, and for the further sum of one thousand dollars damages for its detention, and for interest and costs of suit. The defendants appeal.
1. The motion to dismiss the action, as to the sureties, was properly denied. They were not improperly joined with their [499]co-defendant, McMann, as defendants in the action as claimed by them, and, if they were, the objection was waived by the failure to demur to the complaint upon this ground. The complaint was also sufficient in its statement of facts to show a cause of action against the said defendants as sureties upon the official bond of their co-defendant McMann, The complaint alleges that defendant McMann as principal and the other defendants as sureties made and delivered the official bond of the defendant McMann, as sheriff of the city and county of San Francisco, by which the defendants became jointly and severally-bound for the faithful performance by the said McMann of his official duties as such sheriff, and then proceeds to state the alleged wrongful act of McMann in his official capacity for which damages are sought in this action. This is sufficient to show a liability upon the part of the defendants as sureties upon such official bond, for, by the terms of such bond, they became liable to respond in damages in a sum not exceeding the amount specified therein for any wrongful act or default of their principal in his official capacity. (Pol. Code, secs. 960, 961; Van Pelt v. Littler, 14 Cal. 194.) The case of Ghiradelli v. Bourland, 32 Cal. 585, cited by defendants, is not opposed to our conclusion upon this point. The complaint in that case did not directly aver that the defendants sued therein as sureties signed or joined in the execution of any official bond, nor did it show the terms of such bond, and it was not distinctly alleged that the defendant, sued therein as sheriff, ever executed any official bond as sheriff. The distinction between that case and the present is, we think, quite obvious.
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