Salter & Robins and Geo. B. Thatcher, for Petitioner.
C. A. Gillette and Thomas A. Brandon, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in mandamus. The petitioner was the plaintiff in an action for claim and delivery in the district court of Humboldt County. After the regular commencement of his action, by the filing of complaint and the issuance of summons, petitioner, in compliance with chapter 20 of the civil practice act of this state, claimed the delivery of certain personal property enumerated in his petition. In accordance with his claim he made an affidavit setting forth the essential requisites under the civil practice act, and thereby required the respondent, as sheriff of Humboldt County, that being the county in which the personal property was situated, to take the personal property from the defendant.
It is admitted by the pleadings in this case that all of the steps necessary to justify the sheriff in taking possession of the property from the defendant were accomplished by the petitioner, as plaintiff in the case below. From the petition and answer in this proceeding it appears that the respondent, as sheriff, nominally took possession of the personal property.
Petitioner alleges that more than five days elapsed and no notice was served on him, as plaintiff in the action in the lower court, by respondent, or by any other person, that defendant required the return of the personal property, or that the defendant had given to the respondent
a written undertaking as prescribed by section 187 of the civil practice act, and no notice had been served on petitioner that defendant's sureties would justify before the judge of the district court, in which court the action was pending, or before the clerk of that court, as prescribed by section 188 of the civil practice act (Rev. Law, sec. 5130). After the expiration of five days from the date of the taking of the property by the respondent, petitioner made demand on the respondent for the delivery of the property to him under section 187 of the civil practice act.
In the answer filed by respondent it is claimed that the defendant, in the action in the lower court, made demand and delivered an undertaking to respondent within five days from the date of the taking of the property by respondent, and that thereafter the sureties on the undertaking qualified before a notary public in and for the county of Humboldt. Respondent further states that the undertaking was approved by him in his official capacity as sheriff, and that after the delivery of the undertaking to respondent he returned the property to defendant. Having surrendered possession of the property, respondent alleges that he has not now legal control thereof.
 In our practice in matters of claim and delivery, section 5128, Revised Laws, prescribes:
The defendant may within two days after the service of a copy of the affidavit and the undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice in like manner as upon bail on arrest; and the sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived, as above provided, or until they justify. If the defendant except to the sureties he cannot reclaim the property, as provided in the next section.
As appears from the record in this case, the defendant in the lower court did not except to the sufficiency of
plaintiff's sureties given in the latter's undertaking in claim and delivery; hence it follows that the defendant is deemed to have waived all objections that he might have to the sureties offered on the undertaking of plaintiff. The defendant having failed or refused to avail himself of the right of excepting to the plaintiff's sureties, he had the right to demand of the sheriff the return of the property taken as soon as he had complied with the provisions of section 5129 and section 5130, Revised Laws.
Section 5129 (section 187 of the civil practice act) prescribes: At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, in gold coin of the United States, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for payment to him of such sum, in gold coin of the United States, as may for any cause be recovered against the defendant. If a return of the ...