Opinion
Argued February 28, 1882
Decided April 25, 1882
Henry W. Bookstaver for appellant.
Henry G. Atwater for respondent.
The only authority to make the order appealed from is such as can be found in section 655 of the Code of Civil Procedure, which provides that in executing an attachment, the sheriff may maintain an action or special proceeding in his own name or in the name of the defendant, to reduce to his actual possession an article of personal property capable of manual delivery, but of which he has been unable to obtain possession.
No authority is given to order a person holding property of the attached debtor to deliver it to the sheriff, on motion of the attaching creditor. The action or proceeding for that purpose must be instituted by the sheriff, either in his own name or that of the debtor.
The order appealed from was not made in any action or proceeding instituted by the sheriff, but was made in the action in which the attachment was issued, and on motion of the attorney for the plaintiff in that action. The sheriff does not appear to have been a party to the proceeding. For this reason the order was irregular and unauthorized. The respondent, however, moves to dismiss the appeal on the ground that the appellant has obeyed the order and delivered the property to the sheriff, and this fact is proved by affidavit and conceded, though it is denied that such obedience was voluntary.
If the appellant had any interest in the property delivered up, which would entitle him to restitution upon a reversal of the order, we should sustain his appeal. But he does not claim any such interest, and, on the contrary, states in his affidavit that he has no personal interest whatever in any of the proceedings. He has not, therefore, been aggrieved by the order except in so far as it adjudges costs against him. That part of the order should be reversed and the appeal as to the residue dismissed, without costs in this court to either party.
All concur, except TRACY, J., absent.
Ordered accordingly.