Cleave v. Bucher

Citations

• 79 Cal. 600
• 21 P. 954
• 1889 Cal. LEXIS 780

Syllabus

<p>Sheriff—Failure to Return Execution — Action for Damages — Pleading — Payment of Fees.—It is not necessary, in an action against a sheriff for damages for failure to return a writ of execution, to allege in the complaint that the fees of the sheriff were paid. If the fees were not paid, and the writ was not served or returned on that ground, it must he pleaded hy the sheriff as matter of defense.</p> <p>Id. —Duty of Sheriff—Voidable Execution.—If an irregular or imperfect execution is amendable, it is not void, but only voidable, and it is the duty of the sheriff to serve and return it.</p> <p>Execution—Reference to Judgment Roll — Presumption—Imperfections in Writ.—A writ of execution stating the county in which the judgment was recovered intelligibly shows in what county the judgment roll was filed, upon the presumption that the clerk of the superior court of that county did his duty in making up and filing the judgment roll. If the writ commands the sheriff to make a specified sum by levy, distress, and sale out of defendant’s property, without showing specifically the amount of the judgment or the amount due upon the judgment, it is not void, hut amendable.</p> <p>Divorce — Execution for Alimony. — An execution may he issued for alimony allowed hy a decree or order of court, without first giving the defendant an opportunity to show cause why he had not obeyed the order.</p> <p>Action against Sheriff—Pleading —Official Capacity — Ambiguity. —In an action against a sheriff for damages for failure to return a writ of execution, if the defendant is described as sheriff in the title of the cause, and the complaint avers Ms official capacity, and that the writ in question was delivered to Mm as sheriff, but that, in violation of his duty as sheriff, he failed to return the same, to the damage of plaintiff in the amount of the writ, the complaint shows that the action is brought against the defendant as sheriff, and is not demurrable for ambiguity in not showing whe