Howe v. White

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>This was an action against a sheriff for neglecting to levy on execution.</p> <p>On the 4th day of December, 1869, the plaintiff commenced an action in the District Court, Sixth Judicial District, County of Sacramento, against Henry McCann, and procured an attachment, which was placed in the hands of the defendant White, who was sheriff of the city and county of San Francisco, and was by him levied on a debt of one thousand dollars owing to said McCann by the Union Insurance Company. On the 18th of the same month, the plaintiff recovered judgment against McCann for fourteen hundred dollars, and on the same day an execution was issued, which was, on the 20th of the same month, delivered to said sheriff, with directions to levy immediately on the sum of one thousand dollars in the hands of said Union Insurance Company. The sheriff went immediately to the office of the said insurance company and exhibited the execution, and demanded from the company the sum of one thousand dollars by virtue of the execution against Mc-Cann. The company admitted that it had in its possession the sum of one thousand dollars, but said it had sixty days to settle with McCann; that the money had already been attached in the action, and refused to deliver it to the sheriff. The plaintiff’s attorney was present when this interview between the sheriff and the insurance company took place. The sheriff did not levy on the money. He made the following return on the execution :</p> <p>“Shebiff’s Office, }</p> <p>* ‘ City and County of San Francisco. |</p> <p>“By virtue of the annexed writ of execution, on the 20th December, 1869, I exhibited said original, and made demand of C. D. Haven, Sec’y of the Union Insurance Co., at the city and county of San Francisco, for the money heretofore attached by me in said suit; and he, said Haven, answered that the company had sixty days wherein to make settlement, and that the money had been previously attached in said case by me; and further, on the 28th of December, 1869, made another demand, and was- informed that said money could not be paid, as the company was enjoined by a writ issued out of the United States District Court; and was further informed by said Haven after said injunction was dissolved, that there was one thousand dollars, payable to defendant, that he could not pay me the amount until he had consulted his legal adviser, and on a subsequent demand he. refused to pay over the amount.</p> <p>“July 18th, 1870.</p> <p>“P. J. White, Sheriff.</p> <p>“By Geo. F. Knox, Under-Sheriff.”</p> <p>The one thousand dollars was due from the insurance company to McCann on a policy of insurance issued by the company. It was admitted on the trial “that, from the 5th until the 23d of December, 1869, the Union Insurance Company had in its possession one thousand dollars in gold coin belonging to McCann.”</p> <p>The case was tried by a referee who held, as a matter of law, on the foregoing facts, that the plaintiff could not recover. The Court rendered judgment for the defendants. The defendants, other than White, were the sureties on his official bond. The plaintiff appealed.</p>