Raker

The defendant as sheriff sold certain real property owned by plaintiff under an execution issued upon a judgment recovered against him. The complaint in this action, which is verified, alleges that this sale was made by defendant without giving the notice required by section 692 of the Code of Civil Procedure, and the plaintiff demands a judgment against the defendant for the statutory penalty of five hundred dollars given by section 693 of the Code of Civil Procedure against an officer for selling property without legal notice, and, also, for the actual damages alleged to have been sustained by him by reason of such wrongful sale. The defendant answered, and the action was-tried without a jury, the court finding in substance that-the defendant gave the notice required by law before making the sale complained of, and judgment was thereupon entered in favor of defendant. Plaintiff appeals. •

1. The court did not err in denying the motion of plaintiff for judgment upon the pleadings. The answer was not evasive, as claimed by plaintiff, it being very evident that the word “when,” used in one of the denials relating to the posting of the notices, is a clerical error, the context…

In his petition for a rehearing counsel for respondent insists that, in reversing the judgment in this case, we have at the same time reversed without noticing it a former decision of this court upon which he relied and had a right to rely in advising his client *218 and presenting his case to the trial court; and this supposed grievance is so strongly urged that we feel called upon to point out the fact that it has no existence.

The case to which counsel refers is entitled Egery v. Buchanan and is reported in 5 Cal. 54 . It was cited in support of the proposition that in an action by an execution debtor against a sheriff to recover the statutory penalty and damages for selling land without notice, the sheriff’s return on the execution to the effect that he has given notice is conclusive evidence in his favor. It will be seen, however, upon the most cursory examination of the case, that it is not authority for any such proposition.

That was not, like this, an action on the case against the sheriff for damages, but was a summary proceeding by motion in an action between other parties to enforce the penalties prescribed by section 9 of the Act of April 29, 1851—Stats. 1851, p.…