Schloss v. White

Citations

• 16 Cal. 65
• 1860 Cal. LEXIS 163

Syllabus

<p>On appeal, a judgment by default will be reversed, unless the record show service on the defendant, or appearance, though possibly a judgment so obtained could not be impeached collaterally.</p> <p>Cases cited.</p> <p>Plaintiff sued out an attachment against K., and the Sheriff levied it on certain goods. Other creditors issued attachments, which were levied by the Sheriff on the same goods. Plaintiff then dismissed his attachment, and sued the Sheriff in replevin, claiming that K. obtained a portion of the goods of plaintiff by fraud. Instead of taking the goods out of the Sheriff’s possession, plaintiff made an arrangement with the Sheriff, whereby he agreed to sell the goods, and keep the proceeds to answer any judgment plaintiff might obtain in his replevin suit. Sheriff sold the goods, paid the money into Court, saying nothing about this arrangement, and the money was paid, by order of Court, on the claims of the other creditors. The sureties of the Sheriff bad nothing to do with, and gave no sanction to the arrangement. Plaintiff had judgment in replevin: Held, that the sureties on the Sheriff’s official bond are not liable to plaintiff for the goods or the money received from the sale— this agreement between him and plaintiff being no part of the Sheriff’s official duty; that the Sheriff, as such, had no legal authority to sell these goods and to hold the money on bailment for plaintiff; and that, in so far as plaintiff trusted the Sheriff with the goods, and authorized him to sell them, ho became the agent of plaintiff, and must be looked to as such.</p> <p>Sureties on the Sheriff’s official bond in this State, stipulate for his official, not his “ personal dealings, and are entitled to stand on the precise terms of their contract.</p>