Haws

Appeal from a judgment for plaintiff, pursuant to verdict for $800 with interest, in an action against a sheriff and the surety on his official bond for alleged negligent failure to- levy a general writ of execution which plaintiff, as judgment creditor, had caused to be issued against her judgment debtor, one Padilla, under a judgment for more than $8,-000.

The case is before us for the second time; an earlier judgment for plaintiff was reversed for reasons stalled in (C. C. A.) 27 F.(2d) 74 (1928). The present appcal presents entirely different questions. The original complaint was based on defendant Sheriff Haws’ negligent failure to levy on personal property; the third amended complaint, on which the ease was retried, was based upon his negligent failure to levy on real estate belonging to Padilla, followed by the latter’s disposal of this property and his insolvency.

A demurrer for failure to state a cause of action was overruled. Appellants contend, while appellee appears to deny, that the liability attempted to be charged in the complaint is that now embodied in the second sentence of section 839, Ariz. Rev. Code 1928. * If it were entirely clear that plaintiff had based…