Meherin v. Saunders

Garoutte, J. This is an action by the assignee of the California Steamship Company, an insolvent corporation, against defendant Saunders, as constable of judicial township No. 5 of Santa Barbara county, and the sureties upon his official bond. Defendants appealed from a judgment rendered against them, and also from an order denying their motion for a new trial.

Saunders, as constable, held certain executions running against the California Steamship Company, prior to insolvency proceedings. One of these executions he levied upon its real estate, and proceeded to sell the same. At the sale one Ambrose bid $10,000 for the property, and it was knocked down to him as the highest bidder. Thereupon, in payment of the purchase price, he gave the constable $855 in money and his personal check for the balance, amounting to $9,145, Ambrose was well known to the officer, and of sound financial standing. The constable issued to him a cer[465]tifieate of sale in proper form, and satisfied the executions, including accruing costs, with the money received. At this stage of the proceedings Ambrose stopped payment upon the check, and the money therefor has never come into the hands of the constable. This action is brought to recover from the constable the amount of the check,, as money in his hands received at the sale. There area great many matters set out in the answer which are purely surplusage and no defense to the allegations of the complaint. The only statement found therein which would seem to possess the semblance of a defense to the action is the allegation that the defendant constable executed the certificate of purchase set out in the complaint “ without consideration, and through misapprehension, mistake, surprise, and excusable neglect,” but we find nothing in the evidence to support this allegation, conceding such an issue to be a material one.

Under the evidence we are bound to hold that the entire $10,000 was received by Saunders, the constable. It is settled law that a sheriff cannot impeach his return as to the amount of money received by him at execution sale, and, certainly, this could not be done as to the judgment debtor. (Harvey v. Foster, 64 Cal. 296.) But, conceding that the certificate of purchase here issued is not the equivalent of the sheriff’s return, and that there is no paper in this record such equivalent, still the evidence as to the character of the transaction is indisputable, and, by the constable’s own words, his liability is fixed. He says: “ I did collect in coin from Ambrose $855. The reason I did not collect the balance of that $10,000 from him was because Mr. Ambrose did n’t have the money with him, and I supposed the check was good; knowing he was good, I took it in lieu of that much money, and gave him the certificate of sale for that $10,000, and acknowledged receipt of the $10,000 in that certificate of sale. I never tried to collect that money from Donahoe, Kelly & Co. I have not, up to this time, demanded of Ambrose to pay that check in money. I gave him the certificate of sale be