ALEXANDER v. WILSON, Sheriff, et al., 7 Cal. Unrep. 195

SMITH, C. This is a suit brought by plaintiff against appellant, Wilson, and his surety, for the sum of $4,200, as damages for failure of said defendant, as sheriff, to sell under execution certain personal property held by him under attachment in the suit of plaintiff against Anderson & Berry.

The defendants pleaded in justification an injunction issued from the district court of the United States for the northern district of California in bankruptcy proceedings there pending; and the defendant Wilson further pleaded by way of counterclaim that plaintiff was indebted to him in the sum of $568 for money paid by him as keeper’s fees, at plaintiff’s request, while in charge of the property.

The findings were for defendant, except as to the counterclaim, as to which the court finds: That the defendant Wilson did employ keepers of the property in his charge, who remained in possession until after the judgment; that an order was made by the superior court in the case allowing him the sum of $284 as his necessary expenses of keeping and preserving the property under the attachment; and that the said sum has not been paid to the defendant. But the court gave him judgment for his costs only, disallowing the counterclaim.

The defendant appeals from the judgment, and the relief demanded is that the judgment be modified so as to adjudge to the appellant the amount of his counterclaim, as found by the court. The judgment was affirmed by this court on the appeal of the plaintiff June 30, 1904, 144 Cal. 5, 77 Pac. 706. There is no brief on file for respondent. The counterclaim seems to be a just debt; and no reason suggests itself as to why it should not be allowed (Lane v. McElhany, 49 Cal. 421, Shumway v.

Leakey, 73 Cal. 261, 14 Pac. 841, and Stats. 1869-70, p. 158, c. 144, therein cited), and we are of the opinion that it should be so ordered. We advise that the judgment he modified as above indicated, and, as modified, that the same stand affirmed. We concur: Gray, C.; Cooper, C. For the reasons given in the foregoing opinion, the judgment appealed from is modified by adding thereto a clause .to the effect that the defendant also recover of plaintiff the further sum of $284, with interest from September 24, 1901, and, as so modified, stands affirmed: Shaw, J.; Van Dyke, J.; Angellotti, J.