Lewis v. Johns , 34 Cal. 629 ( 1868 )

By the Court, Sanderson, J.:

There is a marked difference between this case and that of Davidson v. Dallas, 8 Cal. 227; 15 Cal. 79. That was an action by an assignee of the Sheriff upon tlie indemnity bond which was given by the second attaching creditor. This is an action by the parties whose property was wrongfully taken, against the Sheriff and both attaching creditors, as joint trespassers.

It was substantially conceded by the Court, in the former case, that the attaching creditors were joint trespassers as to the injured party, but it was held that the same rule did not apply as between them and the Sheriff' in an action upon the indemnity bonds. The Court said: “It is conceded that in a case of joint trespass, the party injured may sue one or all of the trespassers, and each one will be liable for the whole damages; but a satisfaction made by any one of them will be a discharge of all. But in this case, as between the Sheriff and his indemnitors, the same rule does not apply. He does not bear toward them the same relation that the injured party does toward joint trespassers. As between the Sheriff and the attaching creditors, their liability to him arises under contracts allowed by law. In those contracts there were mutual covenants. He bound himself to detain the property, first for Gibson (the first creditor,) and second for Dallas (the second,) with the condition that this order was subject to be changed by the ultimate results of the suits.”' (Page 255.)

It was accordingly held—First, if, in such a case, both attachments are ultimately sustained and the whole proceeds of the property absorbed by the judgment of the first creditor, the Sheriff must look to him alone for indemnity; second, if the first attachment is defeated and the second sustained, he must look solely to the second attaching creditor for his entire indemnity; third, if both are sustained and the property sells for more than sufficient to satisfy the first, the Sheriff is entitled to recover from each of the creditors in proportion to the amount of the proceeds of the sale paid by him to them respectively; and, fourth, if both attachments are defeated, the responsibility of each creditor is in proportion to the amount for which he attached, unless the value of the property is greater than the aggregate amount of both attachments, in which ease the first creditor’s liability to the Sheriff is equal to the amount for which he attached, and the second creditor is responsible for the whole of the remainder.

Whether this is sound doctrine, need not he considered here. It was very seriously doubted in the second appeal in the same case. (15 Cal. 79.) We refer to the case merely in response to its citation by counsel, and solely for the purpose of showing that it is not in point, and has no direct application to the facts of the present case.

The sole question here is, whether the appellants were joint trespassers with their co-defendants. We are unable to perceive upon what ground it can he held that they were not.

It does not appear, either from the evidence or the findings, whether at the start either of the attaching creditors gave the Sheriff any direction to levy upon the property in question. The case merely shows that the attachment of Doll & Simpson was issued on the 9th of July, 1862, and placed in the hands of the Sheriff on that day; that the attachment of the appellants, Levensohn & G-alland, was issued on the eleventh of the same month, and placed in the hands of the Sheriff on that day; that the levy was made on the twelfth for the benefit of both attachments, that of Doll. & Simpson taking precedence merely by operation of law, because it was first placed in the possession of the Sheriff; that thereafter the Sheriff' was notified by the plaintiff's that the property was theirs, and not the property of the defendant in the attachment; that thereupon both Doll & Simpson and the appellants executed separate bonds of indemnity on the same day, and delivered them to the Sheriff; that the property was sold, as perishable, for the benefit of both attachments; that the proceeds were sufficient to pay the whole of Doll & Simpson’s claim and three fourths of the appellants’, and were so applied by the Sheriff.

In view of these facts, there is no pretense for saying that the appellants were not joint trespassers with their co-defendants. If the property was not seized in the first instance by their direction, it was subsequently retained and sold by their direction and for their benefit, and the benefit actually received. (Adams v. Freeman, 9 Johns. 118; Stewart v. Wells, 6 Barb. 81.)

The remaining points do not require special notice. They are mainly covered by our opinion delivered in this case when here before. (24 Cal. 98.)

Judgment and order affirmed.