Graves v. Moore

McKee, J.: By an execution issued on a judgment in favor of the appellants in this case against one Day, the respondent, as Sheriff of Monterey County, levied on certain personal property, including a billiard table, as the property of the judgment debtor, and advertised the property for sale to satisfy the execution. Before the day of sale, Strahle & Co., and one Soberanes, each for himself, claimed the billiard table pursuant to § 689 of the Code of Civil Procedure. Written notice of the Soberanes claim was given to the appellants; and it was claimed that a like notice was given to them, by the Sheriff, of the claim made by Strahle & Co. After the notification which the appellants did receive, they executed and delivered to the Sheriff an indemnifying bond, and ordered him to go on and sell. The Sheriff accordingly sold, and paid to the appellants the proceeds of sale in satisfaction of their execution. Soberanes abandoned his claim; but Strahle & Co. sued the Sheriff for the billiard table in an action of claim and delivery, and recovered judgment against him, which having satisfied, he brought the action against the appellants, out of which this case arises, to recover the moneys which he had paid in satisfaction of the judgment, and one hundred dollars counsel fee. The lower Court found for the respondent, and entered judgment against the appellants, from which and an order denying a new trial they appeal; and it is contended that the judgment is erroneous, because the finding of the Court—that the appellants were notified of the claim made for the billiard table by Strahle & Co., and that upon such notification they ordered the respondent to proceed with the sale of the property—is not sustained by the evidence. But the record shows that there was sufficient proof of circumstances in connection with the admitted notice of claim received by the appellants, and their immediate execution and delivery of the bond of indemnity, and the order given by them to the Sheriff to go on and sell, from which the Court might reasonably infer that the appellants were actually notified by letter from the Sheriff’s office of [439] the claim made by Strahle & Co. "Upon the question there was, it is true, a conflict of evidence. And the rule is now settled beyond controversy that where there is any evidence to sustain the finding of a fact material to the recovery in a case it will not be revised by this Court. It is next contended that the Court erred in allowing respondent one hundred dollars, paid by him as counsel fee for defending the action brought against him by the claimant. First, because there is no allegation in the complaint that it was paid. Secondly, because such a fee formed no part of t]ie legal damage sustained by the respondent. But it is substantially alleged that the appellants abandoned the defense of the action against the respondent; and that, in consequence thereof, he had to employ counsel to conduct his defense; for which he became bound to pay, and did pay, a fee of one hundred dollars. Payment of such a fee was in fact made; and we think that the respondent was entitled to recover it; because the appellants, by their agreement of indemnity, engaged to save him, as Sheriff, from the legal consequences of selling the property of the claimant; and their engagement applied not only to the act of selling, but to all the consequences resulting to him from that act. (Civ. Code, §§ 2772,2775.) Having been compelled to pay by the judgment against him, he has a right to recover not only the amount of the judgment, but the expenses attending the action which he had to defend. (Duffield v. Scott, 3 T. R. 374; Stark v. Raney, 18 Cal. 622.) Judgment and order affirmed. Ross, J., and McKinstry, J., concurred.