McCoy

This is an appeal from a writ of mandamus directed against the appellant as sheriff of Tuba County to compel him to pay to the assignee of a judgment creditor an amount of money recovered upon the levy of an execution, but which was subsequently returned to the judgment debtor under order of the court.

In an action of assumpsit which was tried in Tuba County, entitled Duryea v. Johnson, the plaintiff recovered judgment in July, 1929. A notice of appeal to the District Court of Appeal was duly filed. No bond staying execution was then filed. An execution was issued and placed in the hands of the appellant for satisfaction. The sheriff promptly levied upon property belonging to the judgment debtor. This property, after due notice, was sold October 23, 1929, for $182. At the same time, the sheriff seized a certain bean-rake belonging to the judgment debtor, which was also noticed for sale to be held on October 31st. On the last-mentioned date, before the sale of the rake, the judgment debtor filed a purported bond for the purpose of staying execution. The bond erroneously recited that “The defendants in the above-entitled action have appealed to the Supreme Court of the State of…