Glidden v. Wills

SCHOTTKY, J. Plaintiff commenced an action against a number of defendants alleging in their complaint that plaintiffs were the owners of certain personal property which was in the possession of defendant Wills, as bailee; that on or about September 29, 1952, defendant Drewes, as constable, attached and took into his possession certain personal property under a writ of attachment which had been issued in an action brought against Wills; that thereafter, under writ of execution, defendant Drewes, on December 14, 1952, sold said attached property to defendant Smith and delivered same to him; and further, “That defendant Henry W. Drewes, in his official capacity as Constable, failed and neglected to file an inventory of the property attached in the action referred to in paragraph VI hereof, as required by Section 546 of the Code of Civil Procedure of California, and plaintiffs were thereby deprived of due [598]and proper information and notice that their property had been attached. They were thereby required to and did make many trips from their home in Burlingame, California, to the vicinity of Willits, Oroville, Brownsville and Marysville, California, in search of said property, to their damage in the sum of $1,000.00.”

The complaint prayed for damages against defendant Drewes and his bonding company in the sum of $1,000.

Defendant Drewes and St. Paul Mercury Indemnity Company demurred to the complaint and the court sustained their demurrer without leave to amend. Plaintiffs have appealed from the judgment entered after the sustaining of the demurrer.

The sole question presented upon this appeal is whether or not appellants did, or could, state a cause of action for damages against the constable, respondent Drewes, predicated upon the constable’s failure to comply with section 546 of the Code of Civil Procedure which provides in part:

“The officer levying the attachment must make a full inventory of the property attached, and return the same with the writ.”

Appellants contend that since the inventory is required to be returned with the writ, it is a “process” or “notice” within the meaning of section 26663 of the Government Code, which applies to constables (Gov. Code, § 27823) and which reads:

“Any sheriff who does not return a process or notice in his possession, with the necessary endorsement thereon, without delay is liable to the person aggrieved for all actual damages sustained by him.”