not exceed the terms thereof? Respondents' counsel has urged that this question be answered in the affirmative, his argument being that the sheriff has every means of protecting himself before he is required to serve the writ, while the tenant has no means of protecting himself against the improvident acts of his landlord, and thus becomes a mere pawn in the game whereby the great physical force of the state is used against him.

There is some practical difficulty, however, in accepting the argument advanced as a reason for holding the sheriff liable. The tenant is not unprotected against the improvident acts of the landlord, but is protected by the bond executed in his favor and filed by the landlord with the clerk of the court. Whether the sheriff is justified in such a proceeding in demanding a bond for his protection is a matter we need not determine, for, while none was taken in this case, we think that the question of his liability does not rest upon this right to require indemnity. A plaintiff who has filed his action for restitution of premises and complied with the statute by giving bond to pay damages to the defendant certainly has a right to demand that the sheriff execute the writ, if it be fair upon its face. The overwhelming weight of authority is to this effect. A sheriff is not required to investigate to determine whether the writ was properly issued by the clerk of the court, nor whether the plaintiff has a meritorious cause of action, nor whether the defendant claims under a superior right. If a writ is delivered to him directing that he perform certain acts prescribed by statute, the court from which it is issued being a court that has jurisdiction of such cases, he should in all -protection in fairness be protected in executing the writ. The cases upholding this are legion, and a brief citation from a few of them will show the trend of

Sheriff-duty when receiving writ of restitution.

executing writ.

authority and reasons supporting the holding.

In the case of Barr v. Combs, 29 Or. 399, 45 Pac. 776, it was sought to hold a sheriff who executed a judgment although it had been paid, and it was charged that the sheriff had knowledge of such payment when he executed it. But the court, holding that the execution was regular on its face, said: "It was therefore a complete protection to him, although he may have known that the judgment on which it was based had in fact been satisfied. A sheriff cannot be wiser than his process, and if the officer or tribunal by which it is issued has jurisdiction over the subject-matter, and the process is regular on its face, showing no departure from the law or defect of jurisdiction, it will afford a complete protection to the officer officer executing it against any prosecution therefor, and he is not affected as to this rule of protection by anything he may have heard or learned outside of the process. Crocker, Sheriffs, § 283; Erskine v. Hohnbach, 14 Wall. 613, 20 L. ed, 745; Twitchell v. Shaw, 10 Cush. 46, 57 Am. Dec. 80; Mason v. Vance, 1 Sneed, 178, 60 Am. Dec. 144; O'Shaughnessy v. Baxter, 121 Mass. 515; Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Webber v. Gay, 24 Wend. 485; People v. Warren, 5 Hill, 440. When, therefore, the execution was placed in the hands of Combs for service, it was his duty to execute it as commanded by its terms, and he is not liable for trespass in so doing, even if he knew the judgment had been paid."

In Holdredge v. McCombs, 8 Kan. App. 663, 56 Pac. 537, it was sought to hold a constable for executing a writ of attachment in an action wherein it was claimed that the orders had been issued without proper legal affidavits therefor and without an undertaking being given as required by law. But the court found that the orders were regular on their face and justified the officer in proceeding in conformity thereto. Said the court: "In the state of

facts as disclosed by the petition, we think it must be held that the officer was protected in making the levy, and that no action for damages lay against him or his sureties on account thereof. The overwhelming weight of authority has firmly established the rule that where a writ of attachment or an execution, 'fair on its face,' has been issued by a court of competent jurisdiction in the premises, the officer is protected in obeying its commands, and is not concerned with any irregularities that may exist back of it."

In Casselini v. Booth, 77 Vt. 255, 59 Atl. 833, the court observed: "It is the law that a ministerial officer is protected in the execution of process, when it issues from a court of general jurisdiction, although such court in fact has no authority in the particular case, provided it appears upon the face of the process that the court has jurisdiction, and nothing appears to apprise the officer that the court has no authority."

See also 35 Cyc. 1740.

While many of the cases cited as authority for the proposition are cases in which the sheriff has acted after trial and judgment, it will be found that no distinction is made between such cases and those where the acts were performed before performed before judgment. We think that our statute giving the plaintiff a right to have a writ executed prior to judgment fully protects the defendant in such a case by requiring the plaintiff to execute a bond for his protection and by permitting the filing of a counterbond.

Although the complaint alleged malice upon the part of the sheriff in the execution of the writ, this was withdrawn at the trial. While the evidence was in conflict, the jury were justified in finding that there were some minor items of damage caused by breakage; but there is nothing to sustain the holding that the sheriff or his assistants in removing the household goods did so in a negligent manner, or without ordinary care.

-liability for breakage in eviction.

While such damage is one that the Nelsons were liable for, the sheriff would not be.

It is also contended by respondents that the writ was not properly served on them, and therefore the sheriff did not proceed legally, and no jurisdiction over them was acquired. Passing for the moment the fact that they appeared generally in the action for possession prior to any eviction, thus probably curing any defect in the service, we think the service shown was sufficient. The record shows that the service was made by delivering a copy of the process to a son of the respondents on the

tenant-restitu

of service of writ.

premises, he being Landlord and a suitable person so tion-sufficiency far as age and discretion were concerned, if not actually the person who made the arrangements for their possession of the property. Section 820, Rem. Comp. Stat., provides that "the sheriff shall, upon receiving the writ of restitution, forthwith serve a copy thereof upon the defendant, his agent or attorney, or a person in possession of the premises.

The service is said to be invalid

because there was not also a copy mailed to the defendants at their residence as re

-service of no

quired under § 814. Hee of restituWe think that sec- tion-duty to tion, however, does

mail.

not control the service of writs of restitution. It provides for service of certain notices to be given by landlords to tenants, but does not

apply to the service of writs or sum

mons and complaints.

Again, it is suggested that the sheriff was acting at the behest of the Nelsons and not under the writ. This is predicated upon a paragraph in the answer where the sheriff set out as follows: "That acting at the instance and request of the defendants Bert A. Nelson and Gladys Nelson, husband and wife, and under and by virtue of the writ of restitution issued out of the above

Introductory.

This annotation discusses the liability for damages to a person or his goods during the execution of an eviction process. In respect of the right of a tenant to treat interference with his possession as an eviction and recover damages for loss of the unexpired term, see the annotation in 7 A.L.R. 1103 [Landlord and Tenant, § 74].

Injury to goods.

The holding in the reported case (JOHNSON V. NELSON, ante, 1035), that a sheriff who, acting under a writ of restitution fair on its face, damages the goods of the tenant in executing the eviction process, is not liable therefor in the absence of negligence, seems to have the support of the authorities.

An officer armed with a writ of restitution may enter the premises forcibly, in order to execute it; having so entered, it is his duty to remove whatever chattels or property may be

in the house, doing as little damage as possible, no more than is necessary to effect the purpose, and which would be the natural consequence of a hasty removal. If he should wantonly injure the chattel property, he would be liable to the extent of the injury. Miller v. White (1875) 80 Ill. 580. See also Page v. De Puy (1866) 40 Ill. 506. Compare Sartwell v. Sowles (1900) 72 Vt. 270, 82 Am. St. Rep. 943, 48 Atl. 11.

A writ of possession, fair and regular on its face, issued by a court having jurisdiction of the subject-matter of the action, constitutes a valid protection to the officer who executes it; however, an officer who, in executing a writ of possession, handles property so carelessly and roughly as to injure and break it, becomes a trespasser ab initio, and will not be protected by his writ, notwithstanding it is fair and regular on its face. State ex rel. Carroll v. Devitt (1891) 107 Mo. 573, 28 Am. St. Rep. 440, 17 S. W. 900.

"The officer removing goods under a writ of restitution, in forcible entry and detainer proceedings, is in no way responsible for damage occurring to the goods after their removal from the premises." Przybylski v. Remus (1917) 207 Ill. App. 106 (abstract).

A writ of possession void because the court has no jurisdiction is no protection to officers acting thereunder; and such officers are trespassers from the beginning, and liable in compensatory damages for all injurious acts done to the tenant in executing the writ against him. Perkins v. Ogilvie (1910) 140 Ky. 412, 131 S. W. 200. See also Sanders v. Cline (1909) 22 Okla. 154, 101 Pac. 267.

act.

Where a landlord, acting under eviction proceedings, removes goods from the premises, he is liable for any damages resulting from such Woods v. Kernan (1890) 57 Hun, 215, 10 N. Y. Supp. 654; Eten v. Luyster (1875) 60 N. Y. 252. See also Simner v. McHugh (1925) 87 Pa. Super. Ct. 58. And see the reported case (JOHNSON V. NELSON, ante, 1035). Compare Virginia Iron, Coal & C. Co. v. Dickenson (1925) 143 Va. 250, 129 S. E. 228.

In Eten v. Luyster (1875) 60 N. Y. 252, supra, the court said: "As landlords, the defendants had no right of entry, and their forcible dispossession of the plaintiff was a trespass for which the plaintiff had an action; and the proceedings for his removal by summary process, under the landlord and tenant act, having been reversed, the warrant furnished no protection to them, and constituted no defense to the action. 2 Rev. Stat. 516, § 49; Hayden v. Florence Sewing Mach. Co. (1873) 54 N. Y. 221. The statute expressly gives an action to the tenant in such case. The plaintiff was only entitled to recover such damages as were the direct consequences of the acts of the defendants, and those acting under their direction and by their authority. This would exclude from the consideration of the jury all damages resulting from the acts of, or want of proper care of the property by, the plaintiff. The act complained of was the wrongful removal and de

struction of the plaintiff's property in

his absence, and there was no evidence that any part of the loss was caused by his act, or could have been prevented by him. The question of contributory negligence is not in the case. The plaintiff owed no duty to the defendants, and was not called upon to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where the defendants left them, and look to the latter for their value. They were out of his possession by the tortious act of the defendants, by whom, and whose acts, they were lost or destroyed.

For all loss occasioned by the trespass, whether in the destruction of the chattels or the loss of money that was kept upon the premises, the plaintiff was entitled to recover."

Where a landlord has the right of entry, and to dispossess another who is wrongfully in possession, and abuses such right and beats the other, or wilfully destroys his property, he is liable for the damages. Levy v. McClintock (1910) 141 Mo. App. 593, 125 S. W. 546. See also Haskins v. Haskins (1873) 67 Ill. 446.

Injury to person.

Officers acting under a writ of possession are justified in the use of all reasonable force necessary to remove the property or the occupant against whom the writ is issued. Such officers are liable, however, for wrongs committed either to the person or property. Page v. De Puy (1866) 40 Ill. 506.

An officer executing a writ of habere facias possessionem may forcibly remove all persons in possession, especially those claiming under the person against whom the judgment was recovered, no unnecessary violence being used. Howe v. Butterfield (1849) 4 Cush. (Mass.) 302, 50 Am. Dec. 785, wherein the court said: "The remaining and principal question is whether the defendant was justified by his writ in removing the plaintiff from the house by force and against his will; and we are of opinion that he was. The defendant was authorized and bound by his writ to deliver actual and quiet possession of the house. to the party in whose favor the writ

issued, and for that purpose to remove from the possession all persons therein, and especially those claiming under the party against whom judgment had been recovered. Bacon, Abr. Eject. G, 2."

And an officer acting under a writ of habere facias possessionem may lawfully remove from the premises, without force, the wife of the party against whom the judgment was recovered, though she claims title in her own right, if her claim is invalid, such a removal being no more than is required of the officer in the performance of his duty to put the true owner in possession. Fiske v. Chamberlin (1870) 103 Mass. 495.

A sheriff cannot be held as a trespasser for executing process which has come to his hands from a court having jurisdiction of the subjectmatter, even though the process, without his knowledge, has been superseded by the fiat of a judge. However, a third person who accompanies the sheriff acts at his peril. Morrison v. Wright (1838) 7 Port. (Ala.) 67, wherein the court said: "The sheriff is bound by law to execute all process directed to him by a competent tribunal, and, by necessary consequence, may justify under it. It would be a strange anomaly if the law should exact from him implicit obedience to its mandates, and withhold from him the mantle of its protection when in the discharge of his duty. It is true that the process in his hands became inoperative the moment it was superseded by the performance of the conditions imposed by the fiat of the judge, and all proceedings under it, afterwards, were void. But it by no means follows that the sheriff was a trespasser; any act of his under or by virtue of the process, after notice of the supersedeas, would constitute him a trespasser; but the notice, to have this effect, must be actual, not constructive, notice, and the placing in the hands of his deputy the writ, superseding the former process, will not, of itself, be such notice as the law requires. . . . This justification, afforded to the sheriff from ne56 A.L.R.-66.

cessity and in consequence of the duty cast on him by law, will not avail the defendant Wright, who can be considered in no other light than that of a mere volunteer, and who acted at his peril. The charge of the court, therefore, 'that if defendant Wright did not know that the supersedeas had been issued, he would not be a trespasser,'

cannot be sustained."

The fact that a judgment is fraudulently obtained does not render the officer a trespasser, where he executes a writ, regular on its face, issued on such judgment. Burnham v. Stone (1894) 101 Cal. 164, 35 Pac. 627.

However, a writ of possession void because the court has no jurisdiction is no protection to officers acting thereunder; and such officers are trespassers from the beginning and liable in compensatory damages for all injurious acts done to the tenant in putting the writ in execution against him. Perkins v. Ogilvie (1910) 140 Ky. 412, 131 S. W. 200. See also Sanders v. Cline (1909) 22 Okla. 154, 101 Pac. 267; Haskins v. Haskins (1873) 67 Ill. 446.

Where a landlord seeks to regain possession and kills one who is wrongfully in possession of the premises, he is not liable therefor in a civil action unless he uses excessive force, and then only for such excess. Burnham v. Stone (Cal.) supra.

In Harris v. Cleghorn (1904) 121 Ga. 314, 48 S. E. 959, it was held that, in an action growing out of the alleged tortious eviction of a tenant in violation of a contract of rental, a recovery could not be had both for the actual loss occasioned by the violation of the contract and for wounded feelings caused by the commission of the tort.

A tenant evicted by his landlord cannot recover damages for any humiliation or mental suffering endured by his children as a result of such eviction. Drinkard v. Anderton (1926) Tex. Civ. App. -, 280 S. W. 1076. See also Risdon v. Hotel Savoy Co. (1918) 99 Wash. 616, 170 Pac. 146.

However, if one has the right of en