Pecotte v. Oliver

HAYS, C. J.

The appellant was an acting constable of Hailey precinct, Alturas county, and on the twentieth day of June, 1883, a warrant of attachment was duly placed in his hands for service in an action against one Charles E. Bolton. It was duly served by him seizing and holding certain property of Bolton’s. Afterward judgment was duly entered against said Bolton and an execution issued thereon, and directed “to the sheriff of Alturas county.” The execution was delivered to defendant, in virtue of which he sold the attached property. Soon after the attachment Bolton assigned his estate to this plaintiff, who brought his suit against this defendant for the_ value of the goods theretofore seized. Defendant sought to justify by showing the goods were seized by him as constable under attachment proceedings against Bolton, and afterward sold upon the execution issued upon the judgment obtained in the attachment suit. When- the defendant offered the execution in evidence plaintiff objected because it was not directed to B. F. Oliver, or to any constable, but was directed to “the sheriff of Alturas county.” The court sustained the objection, and de- *253 fendaut duly excepted. The court also refused to permit defendant to show anything done by him as constable under the writ; all of which was duly excepted to.

It is conceded that the defendant was the officer who had served the attachment process, and that he held the property by virtue of that writ. It therefore follows, as matter of law, that he was the proper officer to whom the execution which sought to reach said attached property should issue, as he was the proper officer to make the sale. (Freeman on Executions, 62; Clark v. Sawyer, 48 Cal. 133 .) Since all the property in dispute was that held under the attachment, the direction of the execution must therefore be treated as a direction to an improper officer, as it clearly was, so far as the subject matter of this action is concerned. The rule is laid down by Freeman on Executions, section 65: “Where a writ is directed to an improper officer, but executed by the proper officer, the error in the direction does not vitiate the writ, and may be cured by amendment.” This position is abundantly sustained by the authorities. (Waples on Attachments, 141; Hearsey v. Bradbury, 9 Mass. 95 ; Campbell v. Stiles, 9 Mass. 217 ; Lyon v. Fish, 20 Ohio, 105; Bank v. Franklin, 20 Kan. 264 ; Walden v. Davison, 15 Wend. 575 ; Hibberd v. Smith, 50 Cal. 519 .) It follows that the execution was not void, and the irregularity might have been cured.

Doubtless the better practice in such cases is to apply to the court from which the writ issues to amend the same. Such court would have the right, and it would be its duty, to correct the same; in this ease, by directing it to the officer to whom it was doubtless intended to be given for service. But as this execution was amendable, and not void, we think the court erred in sustaining the plaintiffs objection. For the same reason we think the court erred in refusing to permit defendant to show delivery of execution to'him. For these reasons we think the judgment should be reversed, and a new trial ordered.

Judgment reversed and cause remanded for further proceeding in accordance with this opinion.

Buck, J., concurring; Broderick, J., expresses no opinion.