Tunstead v. Nixdorf

Citations

• 80 Cal. 647
• 22 P. 472
• 1889 Cal. LEXIS 972

Syllabus

<p>Indemnity Bond to Sheriff — Seizure of Property Exempt from Execution— Sale under Alias Writ — Fixing of Liability—Judgment against Sheriff.— When an indemnity bond is given to a sheriff by execution creditors to prevent the release of property which the sheriff had theretofore seized under execution, and which was claimed by the debtor as exempt from execution, which bond is conditioned to save the sheriff harmless from all loss and liability by reason of his taking or retaining the property under said execution, the fact that, before the original writ of execution could have been or was fully executed, an alias writ was necessary to be and was issued in order to sell the property, could not affect the right of the sheriff to resort to the indemnity bond or the liability of the sureties thereon. The liability of the sureties was fixed by the judgment which fixed the liability of the sheriff, whose liability attached under the original execution the moment he refused to surrender the property to the execution debtor.</p> <p>Id. — Counsel Fees. — The allowance of counsel fees upon an indemnity bond must turn upon the covenants of the bond; and if the bond is conditioned to pay all counsel fees incurred in consequence of the legal enforcement of the payment of the penalty of the bond, attorney’s fees expended by the plaintiff in the suit on the bond may be recovered,, including reasonable attorney’s fees in the supreme court.</p>