This is a proceeding for the amercement of a sheriff. It is brought under the provisions of § 7770, Compiled Laws 1913, which provides that: “If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed, which has come to his hands, or to sell any personal or real property, or to return any writ of execution to the proper court on or before the return day, or on demand to pay over to the plaintiff, his agent or attorney of record all moneys by him collected or received for the use of said party at any time after collecting or receiving the same, except as *4otherwise provided, or on demand made by the defendant, his agent or attorney of record, to pay all surplus received from any sale, such sheriff or other officer shall on motion in court and two days’ notice thereof in writing be amerced in the amount of said debt, damages and costs with 10 per cent thereon to and for the use of said plaintiff or defendant as the ease may be.”
The negligence complained of is the failure of the sheriff to satisfy an execution out of property which had theretofore been attached, and to “return the execution within the sixty days specified.” It appears from the record that a portion of the property levied upon under the warrant of attachment consisted of rye and that the remainder of the property was real estate.
It also appears that, after the levy under the above warrant, the rye in question was deposited by the sheriff in an elevator at Wolford, North Dakota, and that thereafter and before the entry of the judgment the elevator company converted the grain to its own use and issued storage tickets therefor to one W. D. McLaughlin. It also appears that when the said McLaughlin sought to recover on the said storage tickets, the elevator company refused to recognize the same, and on a suit being brought against the said company by the said McLaughlin, the sheriff, Frank Eettinger, by permission of the court and on November 24, 1916, intervened. It is also conclusively proven that the execution, which was issued on the 23d day of February, was not returned by the sheriff within sixty days, nor has the same even been returned. Judgment was rendered against the defendant sheriff' for the amount of the execution for the sum of $993.93, being the amount of the execution, together with the 10 per cent thereon prescribed by the statute, and from this judgment the defendant has appealed.
The first point raised by the defendant sheriff relates to the nature of the proceeding. It is claimed that an independent action should have been brought wherein the party alleging to have been injured should have been made plaintiff, and the sheriff, defendant. This, however, we do not believe to have been necessary, and we believe that the procedure adopted in the case before us, which was that of a motion in the original action, was sufficient. Swenson v. Christoferson, 10 S. D. 188, 66 Am. St. Rep. 712, 72 N. W. 459.
*5The second objection made is that while the matter is presented on affidavits, it is in reality an action for the payment of money, and is properly triable to a jury. There is no merit in this objection. The proceeding is neither one for the collection of a fine, nor is it an action for damages. The liability imposed is imposed as a condition upon the holding of the office, and the penalty is not so much imposed as it is agreed by the sheriff when he takes his office to be paid in the case of a failure of duty. The i*ecovery is fixed by the statute, and there is no option on the part of the court or anyone else to award anything else. The purpose of the statute was to award to the execution creditor a speedy and prompt remedy, and without any unnecessary formality, and above all to hold public officers to a strict performance of their duties.
The matter of due process of law was discussed on the petition for a rehearing in the case of Lee v. Dolan, 34 N. D. 449, 158 N. W. 1011.
The third objection made is that no demand for the payment of the judgment was made on the sheriff prior to the institution of the proceedings. No demand, however, seems to be necessary. The statute does not say that, if the sheriff neglects on demand to return the execution, he shall be amerced, but, if the sheriff shall neglect to return the execution. Of course, if the amount had already been paid, this fact could be pleaded in bar. There is no such claim, however, in the case which is before us.
It is next urged, however, that the plaintiffs’ and respondents’ attorney directed the acts of the sheriff in the execution of the writ, and through his acts contributed to the omission of the sheriff in executing the same.
We think there is merit in this contention, and, although we see no reason for withdrawing from the position taken by us in the case of Lee v. Dolan, supra; we think that the present case comes within the rule that, where upon an adverse claim of property levied on being made, the sheriff asks for instructions from the plaintiff’s attorneys, which are promised him, he is not liable to amercement for not selling until he has disobeyed or disregarded directions to that end. Kemble v. Harris, 36 N. J. L. 526; 35 Cyc. 1891.
The case which is before us, indeed, is a peculiar one. In the fall *6of the year 1915 the plaintiffs, Solberg and Studness, brought an action against Amanda Kehr for merchandise sold to her. Ancillary to the action they caused a warrant of attachment to be issued and sent to Frank Hettinger, the defendant sheriff, for service. At this time it appears that another party, by name W. F. McLaughlin, asserted some claim to the crop sought to be levied upon, which was based on a transfer or alleged transfer to him from Amanda Kehr. The deputy sheriff, Palmer, to whom the warrant of attachment was issued, went to the machine that' was threshing the grain and took actual possession of the property. He then notified the agent of the Dodge Elevator Company that he as deputy sheriff would deliver the grain to the elevator. He superintended the threshing and kept track of the loads that were threshed. McLaughlin was also upon the scene, and when the grain had been delivered to the elevator at the near-by town of Wolford, he seems to have persuaded the agent that he was the real owner of the grain, and prevailed upon such agent to deliver to him the storage tickets therefor. When the sheriff applied to the elevator agent for the storage ticket he was informed that it had been delivered to McLaughlin. He also states that he was informed and verily believes that the grain was shipped out of the state together with other grain. It appears that this action was reported to the attorney of plaintiffs, and that he was aware of the fact when he entered judgment in the attachment proceedings. The execution on this judgment was issued on February 23d and sent to the sheriff with a letter containing the following:
“You will please sell the rye heretofore levied upon and oblige.” The sheriff then took the matter up again with the Elevator Company. On March 6th the plaintiffs’ attorney wrote the sheriff, and, presumably in reply to a letter from him, said, “I suppose it will be all right to wait a few days for a letter from Dodge Brothers, as they say they will write again.” On or about March 18th he received a letter from F. B. Lambert, the attorney from the Elevator Company, saying that he knew nothing about the matter, that the Elevator Company did not wish to oppose either party, stating that-McLaughlin had brought suit against the Elevator Company on the storage ticket, and suggesting that the sheriff intervene. This was sent by the defendant sheriff to the plaintiffs with a notation, “What do you think about this? and *7please return with, your answer.” In reply to this the attorney for plaintiffs wrote: “All I can see in this matter, Frank, is that you should pay us for the rye, inasmuch as Mr. Palmer levied on the same when it was threshed, and hauled it himself, and had full charge of it. I think you had better lake this matter'up fully with Mr. Lambert and give him the day when it was done, what was done when it was hauled to the elevator, and who hauled it, etc. My clients feel that they should have had the money out of this before this time, and trust you will get settled up so as to make payments soon.”
So far as the record shows, nothing further was heard from the attorney for plaintiffs until August 24th, when he wrote Coger and Nelson, attorneys for the defendant sheriff,' as follows:
“In the matter of judgment, Albert Solberg & Company against Amanda Kehr, will‘say that I understand that you are acting as attorney for Frank Pettinger, sheriff, in this matter, and that as we are about to ask that the sheriff pay the said judgment and be amerced to same, and if this is paid by him prior to motion being made, we will not ask the 10 per cent additional penalty allowed by the statute, and will at this time, if paid at once, take the face of the judgment, and he can then go ahead and collect for himself.”
When this letter was written the time for making the return had expired, — that time being on May 23d. As far as the letter of March 0th is concerned, there was clearly a permission to negotiate with Dodge Brothers, and in the letter of May 20th there was clearly a permission to negotiate with the attorney for the Elevator Company contained in the words, “I think you had better take this matter up fully and give him day when it was done and what was done with it when hauled to the elevator and who hauled it,” etc.
In the same letter, too, there is no requirement for the return of the execution nor any requirement for a levy, but rather an assertion of a claim against the sheriff personally for not having obtained the storage ticket, this being contained in the statement, “All I can see in this matter, Frank, is that you should pay us for this rye inasmuch as Mr. Palmer levied on the same when it was threshed, and hauled it himself, and had full charge of it.” In the letter of August 24th, also, even where amercement is spoken of, there is a suggestion that the sheriff 'could go ahead and collect for himself.
*8We are by no means satisfied from the record that the rye in question was within the state. There was nothing, therefore, on which the sheriff could levy except on the chose in action; and since the Elevator Company had paid the money obtained from the grain into court, the reasonable and proper thing was to intervene in the action, which was brought by McLaughlin against the Elevator Company. If the property had belonged, as a matter of fact, to McLaughlin, he could not have levied upon it without liability, and could have insisted upon an indemnity bond from his client. They offered to give no such bond, but merely suggested that he take the matter up with the attorney for the Elevator Company, and that he himself was liable not because of a failure to sell under an execution, but because in the first place he had failed to obtain the storage ticket.
The amercement, in short, is sought for the failure to return the execution within the sixty days when the retention of that execution by the sheriff seems not only to have been acquiesced in by plaintiffs' attorney, but was necessary in order to sustain the petition in intervention. Under the provisions of § 7723 of the Compiled Laws of 1913, the sheriff was required to “execute the writ by levying on the property of the judgment debtor, collecting the things in action by suit in his own name, if necessary, or by selling the same; . . .” and it would seem that pending this intervention or suit for collection of the chose in action, the execution creditor had no right to the immediate return of the writ. See Angell v. Baddeley, L. R. 3 Exch. Div. 49, 47 L. J. Exch. N. S. 86, 37 L. T. N. S. 653, 26 Week. Rep. 137. It is true that plaintiffs could have demanded a return of the writ within sixty days, and waived the suit or the attempt to collect on the chose in action, or their claim for personal liability against the sheriff for the failure to obtain the storage ticket. They do not appeal’, however, to have done so.
The judgment of the District Court is therefore reversed, and the cause remanded with directions to dismiss the petition.