The opinion of the court was delivered by

This was an action of injunction. The petition alleges that in August 1874, one C. G. Scrafford obtained a judgment in the district court of Washington county against the plaintiff for $200; that on September 24th then next, the plaintiff filed in the office of the clerk of the supreme court a petition in error, with a transcript of the record, for the purpose of obtaining a reversal of said judgment; that afterward, and on September 25th, he filed his bond to stay proceedings, duly executed and approved, with the clerk of the district court of Washington county; that prior to the-commencement of the proceedings in error, an execution had been duly issued on the judgment to the defendant, sheriff of said county, who levied on certain goods and chattels of plaintiff, and notwithstanding the proceedings in error, and the stay, is about to sell them; that such sale will, if permitted, work great and irreparable injury. On the 26th of September an application was made for a preliminary injunction upon this petition. The application was overruled, and this is the error complained of. We think the ruling must be sustained. The petition was filed on the 24th, the bond on the 25th, and this application made on the 26th. It is nowhere alleged that the sheriff had any actual notice of the filing of either the petition or bond, or any knowledge or information concerning them. Now it seems to us, that *290before the sheriff is subjected to an action, and mulcted in the costs therefor, for executing a process, valid on its face, and lawfully issued to him, he should have some actual notice or information of proceedings staying the execution of such process. For all that the petition shows, the first intimation the sheriff had that there was any thought of proceedings in error, was the notice of this application for an injunction. Doubtless the statute is defective in not making any provision for notice; and unquestionably by the steps taken the execution was legally stayed. But common 'justice to the officer requires that he should be informed of what had been done before subjected to the vexation and costs of a suit, that he make suitable inquiry and govern his actions accordingly. We do not mean to be understood as deciding that if, after being informed of the proceedings in error, and the stay, the sheriff should still attempt to make a sale, he could not be restrained by injunction; though we think even in such cases the better practice would be to file a motion in the case in which the judgment was rendered for an order on the officer to return the execution.

The judgment will be affirmed.

I concur in the decision of this case, but express, no opinion upon the matter stated in the latter portion of the opinion delivered by Mr. Justice Brewer.