I dissent.
The majority opinion concludes that there can be no liability imposed upon the sheriff and his deputy because there was no breach of official duty by the deputy by reason of his unauthorized order releasing the garnisheed account. It is submitted that this conclusion is erroneous and without support in the authorities cited in the majority opinion.
First, the cases which are cited for the proposition that a sheriff is justified in relying upon a court order if the latter is “valid on its face” have no bearing under the instant circumstances. In each of those cases, the officer involved acted under a court order which specifically directed him to act. In Vallindras v. Massachusetts etc. Ins. Co., 42 Cal.2d 149 [265 P.2d 907], the court issued an order directing the sheriff to imprison Vallindras for contempt. The order was later determined to be erroneous and Vallindras sought recovery from the sheriff for false imprisonment. Recovery was denied on the ground that the sheriff was entitled to rely upon an order, regular on its face and issued by competent authority, without conducting an investigation as to possible defects in the proceeding giving rise to the order. In O’Brien v. Thomas, 21 Cal.App.2d Supp. 765 [65 P.2d 1370], the court ordered the marshal to release money held under an attachment. The marshal released the money without awaiting expiration of the time for appeal. It was held that he was justified in relying upon the court order. In First Nat. Bank v. McCoy, 112 Cal.App. 665 [297 P. 571], the court ordered the sheriff to return attached property to the defendant after the latter had filed a stay bond. The sheriff returned the property before the time in which plaintiff had to except to the sureties on the bond had expired. Thereafter, the sureties failed to justify. The sheriff was held justified although the court order was premature. Here there was no order directing the sheriff to release the garnisheed account, hence, there was no compulsion upon the sheriff to act as in the cited cases. In each of those eases, if the court *727order had not been erroneous, the officer would have been subject to liability had he failed to obey, hence, the result there reached which relieves the officer from the duty of examining the order beyond a determination that it is “valid on its face.”
Secondly, there was no compulsion upon the sheriff by virtue of any statutory provision. Government Code, section 26608, which provides that: “The sheriff shall serve all process and notices in the manner prescribed by law” and Code of Civil Procedure, section 262.1, which provides that: “A sheriff ... is justified in the execution of, and shall execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued” cannot justify the action of the deputy here for the reason that the court order did not call for “service” or “execution” by the sheriff. As previously noted, it did not direct the sheriff to take action. Neither did it bring into play any code section requiring the sheriff to act. In this latter respect the instant case differs from Clark v. Superior Court, 37 Cal.App. 732 [174 P. 681], cited by the majority for the proposition that: “The sheriff would be bound to respect and carry out the court’s order releasing the attachment when a duly authenticated copy was placed in his hands . . . just as he is bound where the order is specifically addressed to him.” In the Clark case, the sheriff refused to release on the record an attachment of real property after the trial court ordered a nonsuit and the plaintiff failed to appeal within the prescribed time. It was held that the sheriff could be compelled, by a writ of mandate, to release the attachment because of a code section (Pol. Code, § 4157 subd. 7, now Gov. Code, § 26606) which declares that: “The sheriff shall release on the record all attachments of real property when the attachment placed in his hand has been released or discharged. ’’ (Emphasis added.) There is no comparable section, however, requiring the sheriff to order the release of a garnishment (Johnston v. Jones, 78 Cal.App. 84, 85 [248 P. 286]), therefore, the statement in the majority opinion that the sheriff in this case was bound to carry out the court’s order releasing the attachment is completely lacking in support.
It seems clear, then, that under the general rule quoted in the majority opinion (“A sheriff assuming to act virtute officii warrants that he is possessed of such authority, and if not authorized, is liable to persons who have suffered damage *728from steps taken under the belief that he was”), the plaintiff is entitled to recover from the sheriff and his deputy for the loss occasioned by their unauthorized conduct. This conclusion is further supported by the case law in this state to the effect that a sheriff who releases attached property without authority commits a breach of his duty and is responsible to the plaintiff for the resultant loss. (Sanford v. Boring, 12 Cal. 539, 541; Hesser v. Rowley, 139 Cal. 410, 413 [73 P. 156] ; Reynolds v. Lerman, 138 Cal.App.2d 586, 592 [292 P.2d 559].) Although these cases dealt with the wrongful release of attached property in the sheriff’s custody, the principles expressed therein would apply to the wrongful release of garnisheed property.
The indication in the majority opinion that the only possible basis of liability is that of negligence (which theory plaintiff expressly disclaimed) is likewise without support. This question arose in Reynolds v. Lerman, supra, 138 Cal.App.2d 586, in connection with the applicability of Government Code section 1981 which requires the filing of a claim as a prerequisite to the ■ maintenance of an action for the negligence of a public officer. In that ease the sheriff had attached certain personal property and, without authority, sold it for storage charges. The owner sued the sheriff for damages for failure to “safely keep” the property. The contention that this amounted to a charge of negligence by the sheriff requiring the filing of a claim was rejected. The court held that it was not a question of the “safety” of the keeping but of a violation of the plaintiff’s right to have the sheriff “keep” the property and that the unauthorized violation of this duty amounted to conversion, an intentional, not a negligent tort. Similarly, the unauthorized release of the attached funds was intentional, not negligent. In Sarafini v. City & County of San Francisco, 143 Cal.App.2d 570, 574-575 [300 P.2d 44], the plaintiff sued police officers who, acting upon erroneous information, had broken into her apartment. It was held that the claim statute was inapplicable because the act was deliberate although it was based upon the negligent belief that illegal activities were being conducted in the apartment. Here, defendant Brady’s conduct in ordering the release was a deliberate, voluntary act although he apparently acted under the negligently acquired belief that the release was authorized. Accordingly, relief should not be denied on the ground that his conduct was merely negligent.
Further arguments of the defendants, referred to in the *729majority opinion, are likewise without merit. Inasmuch as the court order, even as it appeared on the clerk’s certificate, did not require any action by the sheriff, by force of the order or of any statute, the question of the liability to the clerk for issuing an incomplete certificate is irrelevant. As to the argument that the bank was not justified in relying upon the purported release order, it suffices to say that such a result would cast a burden upon the garnishee to continuously examine the myriad court records to ascertain the effectiveness of any attachments upon property held by him. To conclude that the garnishee may not rely upon an order, served by an officer of the court, could only result in confusion of the heretofore workable practices regarding the release of attachments.
For the reason that the release order was unjustified by either court order or statute, I am of the opinion that the sheriff is liable for the loss resulting from his deputy’s breach of official duty and, accordingly, I would reverse the judgment.