Cowsert

This is an appeal by the defendant from a judgment for $304 against him, as constable, in an action brought to recover damages because the defendant released an automobile from the lien of an execution issued upon a judgment secured by plaintiff against one Jack Zero.

The facts are presented by the findings and are that the plaintiff had duly secured a judgment against Jack Zero in the sum of $299 and costs. Thereafter an execution was issued and delivered to the defendant constable, with instructions to levy said execution upon a certain Dodge commercial truck in the county of Fresno, state of California, and within the jurisdiction of said constable. The constable made the levy and took the truck into his possession under and pursuant to the writ of execution, and on the sixteenth day of June, 1923, posted notice of constable’s sale to be held on June 22, 1923. On June 18, 1923, Michael Peeci claimed to be the owner of said truck and filed a third-party claim and demanded the release of the truck. Thereupon the constable demanded of plaintiff an undertaking pursuant to section 689 of the Code of Civil Procedure of the state of California, in the sum of $1,500, which demand was…