Orton v. Brown

California Supreme Court Jul 28, 1896 No. S. F. No. 290Published

Before: Haynes

AI Brief

AI-generated · verify before citing

Holding. The court held that a sheriff is not liable for failing to retake property after an irregular execution sale is vacated unless the plaintiff proves the sheriff could have lawfully regained possession, and that the sheriff's return is not conclusive evidence of liability for the property's subsequent loss.

Issues

Whether a sheriff is liable for failing to retake property after an execution sale is vacated.
Whether a sheriff's return on an execution is conclusive evidence against the sheriff in an action for damages.
Whether the trial court erred in its instructions to the jury regarding the evidentiary weight of the sheriff's return.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The sale is completed by the payment of the sum bid, and the purchaser is then entitled to the immediate possession of the property, and it was not thereafter in the custody or possession in fact of the sheriff”

“The liability of the sheriff, if he is liable, could only be for his failure to retake the property after the sale was set aside”

“The burden was therefore upon the plaintiff to show that in the proper discharge of his official duty the sheriff could have retaken the property after the sale was set aside”

Synopsis

Practice—Bill of Exceptions—Statement of Evidence. —Where the weight or effect of evidence is to be considered, as upon motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict or finding, it is the duty of counsel for the moving party to incorporate in his proposed bill of exceptions all of the evidence which he deems material. If he omits to do so, and amendments are inserted in the proposed bill at the instance of the adverse party, to the effect that he introduced evidence “ tending to prove” certain facts in support of the verdict or finding, and in pursuance of a stipulation of the parties the bill is settled in that form, the appellate court will hold the statement of the evidence sufficient to show a material conflict, and will refuse to grant a new trial on the ground of its insufficiency to justify the verdict or finding.

Execution Sale—Personal Property.—An execution sale of several articles of personal property in one lot, instead of separately, although irregular, is not void.

Id.—Vacating Sale—Liability of Sheriff.—A sheriff who sells personal property under execution, which is immediately taken possession of by the purchaser, is only liable, upon such sale being set aside, for his failure to retake the property.

Haynes, C. Action upon sheriff’s bond. Judgment was entered for defendants upon the verdict of the jury, and plaintiff appeals only from the order denying his motion for a new trial.

Plaintiff is the assignee of the Consumers’ Lumber Company, an insolvent corporation, which operated in Humboldt county, and defendant Brown is the sheriff of said county.

On May 2, 1891, and prior to the insolvency proceedings, one Georgeson obtained judgment against said corporation for the sum of $1,031.58 and costs, in which action the plaintiff attached certain lumber and shingles; and on May 7th an execution was levied on said property, which was afterward, on May 20, 1891, sold by the sheriff in one lot, and not in separate parcels, for the sum of $700, to H. H. Buhne, Jr.

On May 23d, said corporation served notice upon the judgment creditor, the sheriff and said purchaser, that on May 28th, it would move the court to set aside said sale upon the ground of irregularity, specifying that the sale was conducted in disregard of the requirements of section 694 of the Code of Civil Procedure, in that 596,000 feet of lumber and 326,000 shingles were sold in one lot for a grossly inadequate price.

[563]Said motion was heard on June 3d, and an order was made vacating the sale and ordering “ that the money paid by the sheriff to satisfy preferred claims be returned to the sheriff by the parties receiving the same, and that the $700 paid by Mr. Buhne for the property be returned to him by the sheriff,” and ordering a resale of said property to be made according to law.

On June 23, 1892, Buhne appealed from said order, and on November 21, 1892, the supreme court affirmed the order.

On June 20, 1891, certain creditors of said corporation commenced proceedings in insolvency against it, and on August .14, 1891, it was adjudged an insolvent debtor, and said judgment was, on appeal, affirmed May 20, 1893, and plaintiff was thereafter appointed assignee.

The foregoing facts alleged in the complaint are not disputed; but the complaint further alleged that it was the duty of the sheriff to take and hold said lumber and shingles under the said process and order of the court, and to safely keep the same in his custody and possession so that the same could be subjected to sale, and on information and belief further alleged that he did not do so, but that he (said sheriff) colluded, confederated, and conspired with said Buhne, and willfully and in violation of his duty agreed that Buhne should take said lumber and shingles out of his possession, and “ that said lumber and shingles were taken out of his custody and possession by said Buhne,” to the damage of said corporation in the sum of $6,300, “and thereby the said sheriff placed it beyond his power to again sell said lumber and shingles in obedience to the lawful commands of said court.”

Orton v. Brown

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief