Wood v. Lowden

Haynes, C. The appeal is by the plaintiff upon the judgment-roll. The action was brought against the sureties upon the bond of William F. Hopping, sheriff of Shasta county, to recover the value of certain horses and cattle alleged to have died while held under attachment by the said sheriff, by reason of his failure to procure the necessary feed for .them. The defendants had judgment.

Hopping was elected and served two successive terms as sheriff of Shasta county, the first term ending and the second term beginning on the fifth day of January, 1891. Two days before the end of his first term said sheriff seized said horses and cattle under a writ of attachment, issued out of the superior court of Lassen county in an action wherein one Gf. W. Stratton was plaintiff, and the plaintiff in this action was defendant, and thereafter held the same under said writ until the twenty-eighth day of August, 1891, when said writ of attachment was discharged and the property released therefrom and returned to the plaintiff. The neglect of the sheriff which caused the loss and injury complained of occurred during the second term of said sheriff, and the only question in the case is whether the sureties upon the bond given by the sheriff under his first election are liable for the said neglect of the sheriff occurring during the succeeding term.

Appellant first contends that an officer having commenced to execute a writ must complete it, and cannot release himself from his duty by handing the writ over to his successors; that he must proceed with the execu[234]tion of the writ, notwithstanding the expiration of his term of office.

This was undoubtedly true at common law, as abundantly shown by the authorities cited in appellant’s brief, and was the law in this state prior to the enactment of the County Government Act in 1883. Prior to 1883 the statute provided that the outgoing shall turn over to the incoming sheriff “all executions, attachments, and final process, except those which he has executed or has begun to execute by the collection of money or a levy on property.” (Hittell’s General Laws, sec. 6849.)

Section 107 of the County Government Act of 1883 among other things provides as follows: “When any process remains with the sheriff unexecuted, in whole or in part, at the time of his death, resignation of office, or at the expiration of his term of office, said process shall be executed by his successor or successors in office; and when the sheriff sells real estate under and by virtue of an execution or order of court, he, or his successors in office, shall execute and deliver to the purchaser or purchasers all such deeds and conveyances as are required by law and necessary for the purpose, and such deeds and conveyances shall be as valid in law as if they had been executed by the sheriff who made the sale.”