(dissenting). Although, as explained below, I generally agree with the majority's conclusion that a sheriff may not demand indemnity as a precondition to the execution on a judgment unless the sheriff has a good-faith reasonable doubt concerning the property's ownership or whether it is subject to execution, the appellate record here does not support the majority's mandate. Accordingly, I respectfully dissent.
*745HH
The sheriff is a county officer whose position is created by the constitution, Wis. Const, art. VI, sec. 4, with such inherent duties, powers, and prerogatives as were extant when the constitution was adopted. Professional Police Ass'n v. Dane County, 106 Wis. 2d 303, 305, 310-311, 316 N.W.2d 656, 657, 659 (1982); State ex rel. Kennedy v. Brunst, 26 Wis. 412, 414 (1870). One of the sheriffs duties is to execute on judgments, sec. 59.23(4), Stats., and, in connection therewith, a sheriff is "liable in all respects for neglect of duty," sec. 59.23(9), Stats.1 This reflects the common law, which occasionally placed the sheriff in an untenable position:
By the common law it is the first duty of such an officer, after he receives an execution, to make reasonable effort and inquiry to ascertain whether the defendant in the execution has any property in his township or county subject to levy; and, if he finds any such property in the possession of the defendant, it is his duty to levy the execution thereon, and it was his duty to make such levy whether the property was claimed by a third person or not. It devolved upon the officer, under the common law, to show that such property was not subject to execution, if he failed to make the levy. On the other hand, if he made the *746levy, and the property actually belonged to a third person, he became liable to the true owner for trespass or conversion. In this dilemma he could not, under the common law, demand indemnity from the plaintiff even though the third person asserted his title to the property in the most solemn manner. In the performance of his duty the officer was thus required to act at his peril.
Mayfield Woolen Mills v. Lewis, 117 S.W. 558, 560 (Ark. 1909). Thus, as the Wisconsin Supreme Court has explained:
Bound to know the law and to decide the question between the contending parties, if he made a mistake and executed the process when he ought not to, he would be responsible in damages to the defendant; but if, on the other hand, his mistake was of a different kind, and he refused to execute the writ when he should, he would be answerable for all loss to the plaintiff. If he decided rightly, it would be well; but as questions of jurisdiction, whether the same has been properly acquired or may have been lost, are often very intricate and difficult, perplexing and doubtful even to the courts, the chances are he would fall into error. Obliged under such circumstances to act at his peril, the difficulties and dangers of his position would be evident, if no means of escape existed through the bond of indemnity.
Grace v. Mitchell, 31 Wis. 533, 540-541 (1872).2 The right to indemnity in Wisconsin is now fixed by statute:
*747Indemnity may be required. If there is any reasonable doubt as to the ownership of the property or as to its liability to be taken on the execution the officer may require sufficient security to indemnify him for levying upon such property.
Sec. 815.24, Stats. As the majority recognizes, the sheriff's reasons for requiring indemnity must not be "very slight, unsatisfactory or frivolous," and must be founded in good faith. Majority op. at 742 (quoting from Grace, 31 Wis. at 544-545). This is the general rule:
Indemnity cannot be demanded upon any whim or figment of his imagination, but reason for such demand must exist because of substantial apprehensions as to defendant's title or some other reason that he may become liable by such levy. In other words, there must exist a reasonable doubt as to whether or not the goods belong to the execution debtor or are subject to levy, in order to justify the demand for an indemnity bond.
1 W. Anderson, A Treatise on the Law of Sheriffs, Coroners, and Constables sec. 493 (1941) (footnotes omitted). See also Rankin v. Belvin, 507 S.W.2d 908, 911 (Tex. Ct. App. 1974). Stated another way, the officer is entitled to indemnity either when there is an actual adverse claim to the property, "or such circumstances exist as might well justify a prudent person in apprehending litigation relative thereto." Mayfield Woolen Mills, 117 S.W. at 560.
*748II
Although Ronald J. Forslin's request for relief mimics mandamus, based on the record before us it appears that no mandamus action against the sheriff has been started. Rather, the trial court's order at issue here was in response to Forslin's petition in an action where he, as third-party plaintiff, had recovered judgment against Harris M. Barnett, the third-party defendant.3 The judgment was obtained in Illinois, and was filed in the Wisconsin circuit court for enforcement pursuant to sec. 806.24, Stats.
Forslin's petition alleged that he was Barnett's judgment creditor; that Barnett owned a 25% interest in certain property within the trial court's jurisdiction; that subsequent to the docketing of the judgment in the Wisconsin circuit court, Barnett and his wife conveyed a 50% interest quit-claim deed to William and Muriel Pollack; that the Pollacks brought "an action to quiet title and to purge [Forslin]'s docketed judgment from its lien hold [sic] interest on the Pollacks' property"; that the *749Pollacks' action was dismissed on summary judgment; that "[n]o execution has ever been issued in this action"; that his judgment against Barnett was unsatisfied; and that Forslin "has attempted to obtain a bond to indemnify the sheriff for an execution on the Pollacks' property but has been unsuccessful." The petition sought the following relief:
WHEREFORE, [Forslin] prays for Order waiving the requirement of an indemnity bond to the Sheriff of Winnebago County regarding the execution of his judgment. Alternatively, [Forslin] prays for an Order granting Petitioner a personal signature bond to the sheriff for such execution or for a signature bond of [Forslin]'s son, Glenn E. Forslin, to the sheriff for such execution on Ronald J. Forslin's valid judgment.
Forslin's affidavit in support of the petition indicated that he had "attempted to secure an execution/ indemnity bond for the Winnebago County Sheriffs Department so that the sheriffs department can execute on the judgment in the above matter," but that the efforts were unsuccessful. An unsworn "affidavit" by Forslin's counsel was also submitted in support of the petition. It detailed his unsuccessful attempts to obtain an indemnity bond. The "affidavit" indicated that the attorney "was told by the insurance agents that no bonding company would provide an indemnity bond unless the assets of the judgment creditor (Ronald J. Forslin) were sufficient to justify issuing a bond," and that they would not consider the assets of Forslin's son, Glenn.
A brief hearing was held on the petition, and, other than the Winnebago Corporation Counsel, who appeared for the "sheriffs department," and Forslin's attorney, the appellate record does not reveal that any other person was present. No testimony was offered or taken. *750Rather, Forslin's attorney argued that the judgment was good "so liability can't be an issue anymore," and that ownership of the property on which they sought execution was no longer an issue either. Accordingly, he told the trial court that "the necessary requirements for the sheriff to exercise his discretion in requiring a bond haven't been met so therefore he can't exercise discretion."4 In response, the corporation counsel told the trial court that "if ever a situation cried out for an indemnity bond, it would certainly appear to be that this situation with all its complications does," and that he could "understand why the sheriffs department is apprehensive about the failure to provide an indemnity bond." He noted that he "looked at 815.24," and told the trial court: "I notified my clients of the contents of this petition, and my clients determined that they need sufficient security to be indemnified." The trial court agreed and dismissed the petition.
I recount the contents of the appellate record at some length because as an appellate court we are bound by the record and all its infirmities. Sedlet Plumbing & Heating, Inc. v. Village Court, Ltd., 61 Wis. 2d 479, 483, 212 N.W.2d 681, 683 (1973). Neither the petition nor any document submitted in support of the petition contained any reference to sec. 815.24, Stats., and nothing in those documents could have alerted counsel or the court that the reasonableness of the sheriffs request for indemnity would be at issue. It is thus hardly surprising that there is no evidence in the appellate record, either by testimony or affidavit, of the sheriffs reasons, if any, for refusing to execute without indemnity. See State v. Kaster, 148 Wis. 2d 789, 806, 436 N.W.2d 891, 898 (Ct. *751App. 1989) (state cannot be faulted for not offering evidence when issue on which evidence would be relevant is not sufficiently raised). Under these circumstances, the majority's assumption that there are no reasons supporting the sheriffs request for indemnity, and that none were ever expressed, is unwarranted. In essence, the majority ignores the fact that sec. 815.24 grants the sheriff a discretion that is circumscribed only by the requirement that any "doubt" he might have about the propriety of executing on a judgment be "reasonable." If the trial court may proceed on Forslin's unorthodox request for relief (and I express no view on that subject since it has not been briefed), it should direct the sheriff to exercise that discretion and explain his reasons. Cf. State ex rel. Lewandowski v. Callaway, 118 Wis. 2d 165, 171, 346 N.W.2d 457, 460 (1984) (mandamus appropriate remedy to compel exercise of discretion).5 This matter should be remanded for further proceedings.
Section 59.23(4), Stats., provides that a sheriff shall:
Personally, or by his undersheriff or deputies, serve or execute according to law all processes, writs, precepts and orders issued or made by lawful authority and to him delivered.
Section 59.23(9), Stats., provides:
When the sheriff is required to serve or execute any summons, order or judgment, or to do any other act, he shall be bound to do so in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty . . ..
In England, escape from the dilemma was accomplished by permitting the officer to show the court issuing the execution that title to the property at issue was disputed. " [I]t was then discretionary with the court to interpose its protection; and this discretion seems always to have been exercised in [the officer's] favor whenever it appeared that doubts in regard to the title were *747reasonable, and the officer acted in good faith." Mayfield Woolen Mills, 117 S.W. at 560.
There is no indication in the appellate record that Forslin's petition was ever served on the sheriff; rather, the "notice of petition" indicates that it was sent to:
Winnebago County Sheriffs Dept,
c/o Corporation Counsel Engeldinger
P.O. Box 2808
Oshkosh, WI 54903-2808
as well as to Barnett's counsel. No one has raised the issue of whether the trial court had personal jurisdiction over the sheriff, see Rule 801.06, Stats. ("A court of this state having jurisdiction of the subject matter may . . . exercise jurisdiction . . . over any person who appears in the action and waives the defense of lack of jurisdiction over his or her person as provided in s. 802.06(8)."), or whether the trial court could have granted relief against someone not a party to the action.
He also argued that to deny Forslin the right to execute on his judgment because he could not afford a bond would deny him due process.
"Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards." McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512, 519 (1971).