Opinion of the Court--Lewis, J. O. F. GIFFIN v. H. MARTIN SMITH ET AL. [2 NEVADA, 374.] SHERIFF-WRONGFUL WITHHOLDING OF MONEY.-Section 10 of an act entitled "An act relative to sheriffs" (Stat. 1861, 103), only refers to those cases where there is a wrongful withholding of the money collected by the sheriff, and not where there is a mistake in its application, and it is shown that the sheriff has not the money in his hands. IDEM-POLICY OF THE LAW.-It is not the policy of the law to inflict penalties upon its officers for mistakes or errors of judgment. APPEAL from the District Court of the First Judicial District, Hon. R. S. MESICK presiding. [*375] *The facts appear in the opinion. Clayton & Clarke, for Appellant. Hillyer & Whitman, for Respondent. By the Court, LEWIS, J.: Section 10 of an act entitled "An act relative to sheriffs" (Stat. 1861, p. 103), declares that "If a sheriff shall *neglect or refuse to pay over on demand, to the [*376] person entitled, any money which may come into his hands, by virtue of his office, after deducting his legal fees, the amount thereof, with twenty-five per cent. damages, and interest at the rate of ten per cent. per month from the time of the demand, may be recovered by such person from him and his sureties on his official bond, on application, upon five days' notice to the court in which the action is brought, or the judge thereof, in vacation." Under this law the appellant, Robert Robinson, moved in the court below to recover from the sheriff of the county of Storey and his sureties the sum of fifteen hundred and nine dollars and thirty-four cents, with damages and interest, as provided by the section above set out. The court below refused the relief sought, and from that ruling this appeal is taken. The facts upon which this application is based are set out in the record as follows: "That in the above-entitled action (Giffin v. Smith) an order of sale was NEV. DEC.-56 Opinion of the Court-Lewis, J. issued out of the district court of the first judicial district in and for the county of Storey, on the 15th day of May, A. D. 1863, directing certain property therein described to be sold by the sheriff of Storey county, and that by virtue of said order of sale, W. H. Howard, the sheriff, did sell at public auction the property therein described, on the sixth day of June, A. D. 1863, to O. F. Giffin, for the sum of eight thousand eight hundred and fifty-six dollars, which sum was paid by Giffin to the sheriff; that this sum came into the hands of Howard, by virtue of his position as sheriff of the county of Storey; that out of the proceeds of the sale the plaintiff, Giffin, was entitled to receive only seven thousand and eighty-three dollars; that Kinkead and Harrington, who were parties to the judgment in this action, were entitled to receive from the sheriff, out of the proceeds of the sale, the sum of one thousand and six dollars and twenty-three cents; and H. W. Johnson, who was also a party to judgment, was entitled to receive the sum of five hundred and three dollars; that the several sums which Kinkead and Harrington and Johnson were entitled to receive from the sheriff, were demanded from him on the eighth day of June, A. D. 1863, but that he has refused and continues to refuse to pay the same; that the applicant, Robert Robinson, is the assignee of these several claims. These facts appear in the petition of the appellant. In other parts of the [*377] *record we find the judgment authorizing the sale referred to, together with the sheriff's return thereon, from which we are fully satisfied there was no such willful wrong or withholding of the money by the sheriff as will sustain this proceeding against him and his sureties. The court, in the action of Giffin v. Smith, rendered judgment in favor of the plaintiff for the sum of eight thousand four hundred and ninety-seven dollars and eighteen cents, besides cests. The court then orders the sheriff to pay to the plaintiff, out of the proceeds of the sale of the mortgaged property, a sum "equal to the amount of the note described in the mortgage, said note being for five thousand dollars, and 'caing date January 16, A. D. 1862, with interest thereon, Opinion of the Court-Lewis, J. from date until time of payment, at the rate of two and onehalf per cent. per month, if the amount be sufficient to pay the plaintiff's judgment. The sheriff shall pay two-thirds of the balance of the proceeds of sale (if there be any) to Kinkead and Harrington, to apply on their judgment against the defendant and the other third to defendant Johnson." In the sheriff's return to the execution, he says: "I paid to plaintiff, O. F. Giffin, the sum of eight thousand five. hundred and ninety-two dollars and sixty-six cents, in full satisfaction of the judgment and decree upon which this order was issued, except the lien of defendants and interveners, Kinkead and Harrington, and the claim of H. W. Johnson, one of the defendants herein named, whose several claims are unsatisfied and unpaid." The real amount due Giffin was but seven thousand and eighty-three dollars. Why the court rendered judgment for the sum of eight thousand four hundred and ninety-seven dollars and eighteen cents, whereas the note shows he was only entitled to recover seven thousand and eighty-three dollars and thirty-three cents, we are not able to ascertain from the record. We are inclined to the belief, however, that the sheriff was misled by this error in the judgment, for his return shows that the sum of eight thousand five hundred and ninety-two dollars was paid to the plaintiff, Giffin, which was the entire sum realized from the sale, except the court costs. Here there seems to be nothing to indicate a willful or wrongful withholding of money to which the appellant Robinson is entitled. It was evidently an error, and the return shows that the sheriff has none of the money in his own hands. It remains, then, to be determined [*378] whether the tenth section of the law referred to applies to cases of this kind. In our opinion it does not. The statute is highly penal in its character, and hence it could only be intended to cover cases where the officer willfully withholds money from those entitled to receive it. It is not the policy of the law to inflict a penalty upon its officers for mistakes or errors of judgment. It imposes Opinion of the Court-Lewis, J. punishments only for intentional and willful wrong, or the grossest carelessness. Its humanity is averse to the infliction of heavy penalties for errors where there is no intentional delinquency. The supreme court of California, in the case of Wilson v. Broder (10 Cal. 486), say of a proceeding of this kind: "This remedy was only given for cases of intentional delinquency on the part of the sheriff, as a punishment for his willful or corrupt neglect of duty, and was not designed to embrace a case in which he declined to pay over money collected under circumstances of a bona fide, well-grounded doubt of the authority of the party to demand it.” And in the case of Egery v. Buchanan (5 Cal. 53), the court, in a case arising under a similar statute, says: "It is urged that the statute of this state, giving extraordinary damages against the sheriff for failing to pay over money collected on execution, has affected or altered the rule at common law. There is no reason for this position, and very strong reasons against it. The statute penalties are only recoverable when, by the return of the sheriff, he admits the collection of the money, and refuses to pay it over. If it was otherwise, an error of judgment, or even a hesitation to decide between adverse claimants, might work the ruin of any honest and conscientious officer." (See also Johnson v. Gorham, 6 Cal. 195.) These authorities are supported by the clearest principles of justice, and they clearly sustain the ruling of the lower court. As our conclusion upon this point disposes of the appellant's application, we do not consider it necessary to pass upon the other points raised on the record. The order of the court below is affirmed. 1 INDEX. ABANDONMENT. 1. ABANDONMENT.—There can be no strict abandonment of property without 3. IDEM-FORFEITURE.-A party who insists upon forfeiture or abandonment, See CONTRACTS, 4. ABATEMENT. ABATEMENT.-Where parties having a joint right of action bring suit, and See ATTACHMENT, 3. ACCOUNT. See ASSIGNEE, 1; COUNTY COMMISSIONERS, 3; MISTAKE, 1. ACTIONS. JOINT ACTION-WHEN CANNOT BE MAINTAINED AGAINST MAKERS OF A NOTE.- ADMINISTRATOR. See ESTATES OF DECEASED PERSONS. ADVERSE CLAIM. See AGREEMENT, 2, 3. AFFIDAVIT. See ATTACHMENT, 2, 3; VENUue, 1. |