
    (November 15, 1893.)
    AH KLE v. GREGORY, Sheriff.
    [34 Pac. 812.]
    Mines and Mining — Writ of Restitution — Indemnity Demanded by Officer. — This court, at a prior term, decided the appellants entitled to the possession of certain mining claims, and ordered that they be put into the possession of them. The court below thereon issued a writ of restitution. The sheriff made return to the writ, “that he found parties in possession of the premises that were not parties to the suit, and who were claiming the premises by location under the laws of the United States.” The sheriff was cited to. show cause why he did not execute the writ of restitution, to which he made answer that the plaintiffs refused to indemnify him, he having made demand therefor. Meld, that the sheriff was not entitled to indemnity.
    (Syllabus by the court.)
    APPEAL from District Court, Idaho County.
    James W. Reid and J. W. Poe, for Appellants.
    The only question in the court below was, Did the circumstances and facts of the case confer on the sheriff the legal right to demand indemnity before he could be called on to execute the unit? This is the contention here. In this state a sheriff must execute all process regular on its face and issued by competent authority. (Idaho Bev. Stats., sec. 1882; 1 Deer-tug’s Code, see. 4187.) As to the authority, duty, method of execution and persons to be ejected; 2 Freeman on Executions, secs. 472-475; Fremont v. Grippen, 10 Cal. 211; Sampson v. Ohleyer, 22 Cal. 211; Huerstal v. Muir, 64 Cal. 450, 2 Pac. 33; Wallen v. Huff, 65 Am. Dec. 57; Howard v. Kennedy's Heirs, 4 Ala. 592, 39 Am. Dec. 307, and notes; McCreary v. Everding, 51 Cal. 166; Wetherbee v. Dunn, 36 Cal. 147, 95 Am. Dee. 166.
    Forney & Tillinghast, for Bespondent. ■
    The sheriff may demand indemnity of the plaintiffs in the execution of a writ of attachment before he could be required to seize property in the possession of third parties claiming to be the owners, and upon the refusal of the plaintiff to so indemnify him, no action can be maintained against the sheriff for a false return or a nonperformance of his duties. (Ohamberlain v. Seller, 18 N. Y. 117; Marshal v. Hosmer, 4 Mass. 63; Marsh v. Gold, 2 Pick. 290; Tevis v. Ellis, 25 Cal. 516; Wattson v. Dowling, 26 Cal. 127; Hessel v. Fritz, 124 Pa. St. 229, 16 Atl. 853; Wallace v. Hall, 22 Kan. 194; Crocker on Sheriffs, sec. 572; Harlow on Sheriffs, sec. 324; 2 Freeman on Executions, 472.)
   HUSTON, C. J.

Appellants having recovered, on appeal to this court, a judgment for the restitution of certain mining claims and property, a writ was issued out of the district court for Idaho county, and delivered to the sheriff of said county, commanding him to place appellants in possession of the property. To this writ the sheriff made the following return: "I found M. L. Murray, C. L. Rice, T. S. Ratcliff and Pat Sullivan in charge of property, who decline to obey the writ of restitution.” Thereupon, appellants applied to said district court for a writ of mandate to the sheriff of Idaho county, commanding him to enforce the writ of restitution, and place the appellants in possession of the said property, according to the exigency of said writ, and in obedience to the judgment and order of the supreme court. To the alternative writ, the sheriff made answer that he found certain persons named in possession of the premises, claiming to have located them under the laws of the United States. This position is not tenable, as the mining claims in question were not open to location; they having been located in 1862, and continuously worked by the appellants, and those under whom they held, for a period of nearly thirty years.

It is also stated in the answer of the sheriff to the alternative writ that he had demanded indemnity from one of the appellants, which had been refused. This statement is not entirely in accord with the return made by the sheriff upon the writ of restitution, but accepting it for all it is worth, it constitutes no excuse for 'the officer refusing to execute the writ. It can hardly be expected that we will permit the judgments and orders of this court to be negatived or set aside upon the whim or caprice of an executive officer. The judgment of the district Court is reversed, and an order will be entered directing the district court for Idaho county to issue the writ of mandate as prayed for.

Morgan and Sullivan, JJ., concur.  