State ex rel. Cent. Type Foundry v. Moore

• Decision Date: 31 October 1880
• Citation: 72 Mo. 285
• Parties: THE STATE ex rel. THE CENTRAL TYPE FOUNDRY, Appellant, v. MOORE.
• Court: Missouri Supreme Court

72 Mo. 285

THE STATE ex rel. THE CENTRAL TYPE FOUNDRY, Appellant,

v.MOORE.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

Higbee & Shelton for appellant.

Appellant lost its judgment, and the loss was occasioned directly by the neglect and misfeasance of the sheriff's deputy. 1 Mo. 756; 65 Mo. 555, 560, 561; Raynsford v. Phelps, (Supt. Court, Mich., 1880,) 10 Cent. Law Jour. 464. The sheriff is bound by the acts and declarations of his deputy. Stephenson v. Porter, 45 Mo. 358. Plaintiff's attorney had a right to rely upon the deputy's statement. It was made of a matter of fact within his knowledge. He said he had written and posted the notices himself. He was a sworn officer. Under the circumstances the sheriff should have adjourned the sale. Shaw v. Potter, 50 Mo. 281; Conway v. Nolte, 11 Mo. 74.

Knott & Gamble for respondent.

NAPTON, J.

This was an action brought by the plaintiff on a judgment and execution against one Williams for $135, against the sheriff and his securites, alleging a loss of the debt by reason of the misconduct of the officer. The judgment was levied on a printing press in the office of Williams, at the town of Glenwood, about two miles and a half from Lancaster, the county seat. The plaintiff, being a corporation in St. Louis, intrusted the collection to its attorney at Lancaster. On the day previous to the sale advertised by the sheriff, his deputy came to the office of the attorney and told him the sale was to take place at Lancaster, before the court house door, and inquired of him whether it was necessary to bring the press from Glenwood so as to be on the ground at the sale. The attorney told him it was necessary, but suggested that the sheriff had told him that the sale was advertised to take place at Glenwood, but the deputy assured him that was a mistake, as he had himself drawn up the advertisement. The deputy that evening went over to Glenwood and there ascertained that the sale was advertised for Glenwood, but although there were facilities of communicating this to the plaintiff's attorney, by telegram, by mail or by persons passing to and fro, it was not done. The plaintiff's attorney remained in Lancaster, and the next day the sale took place at Glenwood, about ten or thirteen persons being present, and some of them publicly declaring that the press was mortgaged for more than it was worth, and any one buying would buy a law suit, and consequently the press was sold for $6, being admitted to be worth $300. The court instructed the jury to find for the defendants.

1. SHERIFF: execution: damages.

Whether the facts as we have assumed them to be would have been found by the jury, is not a matter for our consideration. There was confessedly evidence tending...