Opinion
Department Two
Appeal from a judgment for the plaintiff in the Superior Court of Fresno County. Holmes, J.
COUNSEL
Having had one warrant drawn and delivered to his lawfully constituted agent, the Sheriff, and by his express command having obtained the benefit of the proceeds of its sale by payment of judgments against him, plaintiff has not the right to have another warrant for the same services drawn and delivered to him, and obtain double payment from the county. Exemption is a personal privilege. (Smythe Homest. and Exemp. § 536; Gavitt v. Doub , 23 Cal. 79.) Plaintiff failed to demand it as exempt. He thereby waived his privilege. (Smythe Homest. and Exemp. § 536; Borland v. O'Neal , 22 Cal. 505.)
H. S. Dixon, for Appellant.
Terry, McKinne & Terry, for Respondent.
The garnishment afforded no excuse whatever for the giving of a warrant in the plaintiff's favor to the Sheriff. The Sheriff only levied upon all debts due from Bramlett to Grady, and all property of Grady which Bramlett had in his possession. Bramlett owed Grady nothing, and had no property of Grady in his possession, and should have so returned. Even negotiable paper has no validity until delivered to the payee. Though properly made out and signed, so long as it remains in the maker's possession it is, in contemplation of law, but a piece of blank paper. (Parsons on Bills and Notes, 48, 49; Burson v. Huntington. 21 Mich. 415.) The Sheriff, when he seized the " warrant," took nothing but the paper and ink.
JUDGES: Thornton, J. Sharpstein, J., and Myrick, J., concurred.
OPINION
THORNTON, Judge
The matters set forth in the supplemental answer, together with those set forth in the amended answer in the cause, which were incorporated in the supplemental answer by reference to the amended answer, show a ratification by the plaintiff of the levy and sale by the Sheriff of the County of Fresno, of the warrant drawn by the defendant as Auditor of the same county, in favor of plaintiff, for the sum allowed him by the Board of Supervisors for services rendered by him as District-Attorney.
It is averred in the supplemental answer, which sets forth matters which occurred subsequently to the commencement of the proceeding, that the Sheriff, under his levy and seizure of the warrant, sold it under writs of execution regularly issued to him, and delivered it to the purchaser with a certificate of sale thereof; and further, that the plaintiff was present at said sale, with his attorney, and did not forbid it or object to it; that he (plaintiff) received and retained the balance in the Sheriff's hands after satisfying the judgments on which the writs were issued, and demanded that satisfaction of the judgments be entered, which was done.
The averments in the supplemental answer show that plaintiff must have known all the facts as to the levy, seizure, and sale of the warrant by the Sheriff. Such conduct on the part of the plaintiff was a ratification of the acts of the Sheriff, though the warrant could not be levied on under a writ of execution. The plaintiff thus recognized the Sheriff as his agent to sell and receive the proceeds, and confirmed his acts in making such sale and receiving the proceeds thereof.
It is also averred, that after the sale by the Sheriff the purchaser presented this warrant, with the certificate of sale, to the Treasurer of the County of Fresno, and it was paid.
The motion to be allowed to file the supplemental answer, setting forth the facts above stated, was made before the hearing of a demurrer to the amended answer, and was in time. The proceeding was commenced on the 7th day of May, 1880; the amended answer was filed on the 18th of the same month. To this answer a demurrer was interposed on the next day. The motion was made and denied on the 30th of May, 1880, before the demurrer above mentioned was heard and determined. There was, under this state of facts, no unreasonable delay in making this motion, and where such is the case, the motion should be granted. (Sage v. Mosher, 17 How. Pr. 367; Palmer v. Murray , 18 id. 545.)
The motion to be allowed to file the supplemental answer should have been granted, and it was an abuse of discretion to refuse it.
The judgment is therefore reversed, and the cause remanded.