Bone

This is an appeal from the judgment. In this case the trial court prepared an opinion, which correctly sets forth the facts and the law applicable thereto, and which, omitting what is said touching one point not necessary, we think, to a disposition of the case, we adopt as follows:

In this action plaintiff seeks to recover damages from the defendant, as sheriff, for the alleged wrongful sale of personal property under a writ of attachment, without having first tendered to plaintiff the amount of a chattel mortgage owned by plaintiff, and which plaintiff claims antedated said writ of attachment.

The decision in the case involves a question of law based upon the following facts, which are undisputed, viz.: On October 7, 1914, in an action filed in this court (the superior court of the county of Santa Cruz), entitled, “Arbanasin v. Radovan,” Radovan was sued for $370, and costs, alleged to be due for merchandise sold to him by assignor of Arbanasin. On the day the action was filed an affidavit and undertaking for attachment were also filed, and the writ of attachment was issued and placed in the hands of the sheriff for service. The writ was levied by the sheriff upon personal…