Wilson v. Broder

Baldwin, J., delivered the opinion of the Court Field, J., concurring. This was a proceeding by motion, at the instance of Wilson, plaintiff below, to recover the amount of an execution, with interest and damages, of the principal defendant, for failing to pay over money collected by him, as sheriff of Alameda county. [488] The execution on which the money was made, issued on a judgment recovered by one Hart against Moore and Grey. The plaintiff in the action claims to be the assignee of this judgment, and moves, in his own name, as such. The appellant objects to the regularity of this proceeding. This is a summary proceeding, in derogation of the rules of the common law, and is penal in its character: and for both of these reasons must be strictly construed. (See Sloan v. Johnson, 14 Smedes and Marshall’s R., 50.) The statute (Wood’s Digest, p. 680, Art. 3240) is relied on by the plaintiff. It declares, in effect, that when the sheriff shall neglect, or refuse to pay over, on demand, to the person entitled, any money which may come to his hands, after deducting his legal fees, etc., he may be proceeded against by motion, and the principal sum, together with interest at ten per cent, per month, and damages of twenty-five per cent, on the amount of the principal, may be recovered on notice, etc. The statute (Wood’s Digest, 196) defines the duties of the sheriff in respect to final process. It declares “ that the sheriff shall execute the writ (of fieri facias) by levying, etc., and paying to the plaintiff, or his attorney, so much of the proceeds as will satisfy the judgment, etc., and if there be any excess, he shall return the same to the judgment-debtor.” These acts are to be construed in pari materia. The judgment of the Court, and the writ of execution following the judgment, in this case, direct and command the payment to the plaintiff. He is the person entitled to receive the money, according to the language of the record and the act. It would be a forced interpretation of the statute, on which respondent relies, to suppose that the Legislature intended to hold the sheriff to the responsibility of recognizing, as the party to whom he was to pay money, any person who might come to him with a paper purporting to be the assignment of a judgment, and compel the officer, at his peril, to' determine all questions as to the genuineness of the document, its consideration, and its validity. If he should happen to make a mistake, by paying it to the wrong man, he would lose his money; and if he refused to pay the right one, under whatever circumstances, he would be mulcted in heavy damages. The principle which requires suit to be brought in the name of the plaintiff on the record, seems to be clearly maintained in the case of Sloan v. Johnson, (14 S. and M., 50;) and in Tolson v. Elwes, (1 Leigh R., 484.) Mor does the doctrine here laid down lead to the consequences supposed by the respondent. If he be the assignee really entitled to the money made on the judgment, he can assert his title to it in an appropriate form of action; and an assignee may even be entitled to the summary proceeding of the statute in the name of the plaintiff, for a willful refusal by the sheriff to pay money [489] collected, on the demand of the plaintiff in the execution, or his lawfully authorized attorney in fact, or at law. It appears, in this case, that there was a contest, apparently real, as to the title to this money, and that the sheriff acted, for all that appears to the contrary, in good faith in refusing compliance with the plaintiff’s demand. This remedy was only given for cases of intentional delinquency on the part of the sheriff, as a punishment for his willful or corrupt neglect of duty, and was not designed to embrace a case, in which he declined to pay over money collected, under circumstances of a bona fide well-grounded doubt of the authority of the party to demand it. (4 Cal., 56; 6 Cal., 195.) It is unnecessary to consider the various other points in the record, as this view disposes of the whole case before us. Judgment is reversed, and proceeding dismissed. In the cross-appeal of Wilson v. Broder, etc., the appeal is dismissed.