Robinett v. Connolly — 76 Cal. 56

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p. 56

[No. 11372.

Department One.

May 1, 1888]

THOMAS ROBINETT, Appellant, v. PATRICK CONNOLLY, Respondent.

Headnote

Attachment—Payment of Shebiff’s Fees—Kelease.—An attachment debtor, upon affecting a settlement with his creditor, cannot require the sheriff to release the property attached, except upon payment of his fees.

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing- a new trial.

The action was brought to recover the possession of certain property which had been taken possession of by the defendant, as sheriff of the city and county of San Francisco, under a writ of attachment, issued in a certain action entitled Shain v. Robinett. On the day after the property was attached, Robinett affected a settlement with the attaching creditor, Shain, and the latter gave him an order on the sheriff to release the property attached upon payment of the keeper’s fees, which then amounted to three dollars. Upon presenting the order, Robinett demanded the possession of the property, but refused to pay the keeper’s fees. The defendant refused to release until such fees were paid. The plaintiff thereupon brought this action. Judgment was rendered in favor of the defendant, from which and from an order refusing him a new trial, the plaintiff appealed. The further facts are stated in the opinion of the court.

John J. Coffey, and W. M. Tompkins, for Appellant.

Matthew I. Sullivan, and David McClure, for Respondent.

The plaintiff, in the action Shain v. Robinett, could not require of the sheriff (defendant herein) to release the property by that officer attached

p. 57

therein, except upon payment of his keeper’s fees. (Stats. 1871-72, p. 778.) Shain did not pretend to direct the sheriff to release the attachment, except on the condition which the law attaches to every direction to release an attachment.

Eobinett would have acquired no right to demand possession of the property from the sheriff by virtue of his settlement with Shain, had that settlement not provided for the payment of the keeper’s fees. But it was part of the agreement of settlement that Eobinett should pay the sheriff’s fees. The sheriff may refuse to perform official work in advance unless his fees are paid, but (though he has not demanded them in advance), the statute continues his lien for keeper’s fees until they are paid.

Judgment and order affirmed.

Paterson, J., and Searls, C. J., concurred.

Hearing in Bank denied.