Whitney v. Butterfield

Citations

• 13 Cal. 335

Syllabus

<p>Is the service of process the Sheriff is responsible only for unreasonably, or not reasonably, executing it. He is not bound to start on the instant of receiving a writ to execute it, without regard to anything else.</p> <p>Reasonable diligence in the execution of process depends upon the particular facts; whether, for instance, the writ be for fraud, or because defendant is about to leave the State, or remove his property, and the like.</p> <p>A writ placed in the Sheriff’s hands on Sunday cannot be officially received by him on that day. It can only be considered officially in his hands when Sunday has expired.</p> <p>Where one writ of attachment was placed in the Sheriff’s hands on Sunday, and i another against the same defendant was placed in the hands of a Deputy at a quarter past twelve on Monday morning, the Sheriff not knowing the tact, and the first levy was made under the last writ at one o’clock Monday morning, the Sheriff was not guilty of negligence in executing the first writ—no special circumstances being shown.</p> <p>The mere omission of a Deputy to inform the Sheriff of having process in hand is not such negligence as to charge the Sheriff, in case a writ last in hand was executed first.</p> <p>The Sheriff and his Deputy are one person in law, so far as to make the former responsible for the acts of the latter, but not so far as to require of the Sheriff impossibilities, or to impose unconscionable exactions.</p>