Fire Ass'n of Phila. v. Ruby

• Decision Date: 05 November 1896
• Citation: 49 Neb. 584,68 N.W. 939
• Parties: FIRE ASS'N OF PHILADELPHIA v. RUBY ET AL.
• Court: Nebraska Supreme Court

49 Neb. 584

68 N.W. 939

FIRE ASS'N OF PHILADELPHIA

v.RUBY ET AL.

Supreme Court of Nebraska.

Nov. 5, 1896.

Syllabus by the Court.

1. It is the duty of an officer selling land under a decree of foreclosure to pay the proceeds of the sale, upon confirmation thereof, directly to the persons entitled thereto under the decree, unless the court shall have ordered the proceeds to be paid into court.

2. In an action against such officer for failure to pay the proceeds to the party entitled, the officer, admitting in his answer the receipt of the money, does not discharge himself from liability by showing that he paid it over to the clerk.

3. A judgment of amercement against an officer is, in a subsequent suit upon the official bond, conclusive evidence of the facts necessary to sustain the judgment against the officer, and it is prima facie evidence against the sureties.

4. A stipulation is sufficient to authorize the clerk to sign a bill of exceptions when, by its terms, it clearly shows that the particular bill of exceptions to which the stipulation is attached is agreed upon by the parties as a correct bill.

5. Evidence examined, and held not to sustain the verdict.

Error to district court, Phelps county; Beall, Judge.

Action by the Fire Association of Philadelphia against James A. Ruby and others. From a judgment for defendants, plaintiff brings error. Reversed.Dryden & Main and Gus Norberg, for plaintiff in error.

S. A. Dravo, C. H. Roberts, F. G. Hamer, and Stewart & Munger, for defendants in error.

IRVINE, C.

This was an action by the Fire Association of Philadelphia against Ruby, formerly sheriff of Phelps county, and his sureties upon his official bond. It was founded upon the alleged failure of Ruby, as sheriff, to pay over to the plaintiff the proceeds of a sale of real estate under a decree of foreclosure in favor of the plaintiff. There was a verdict and judgment for the defendants, which the plaintiff seeks to review by these proceedings.

Owing to imperfect exceptions and assignments of error, we cannot consider the questions presented as to the instructions given by the court to the jury. We shall confine ourselves to the consideration of a single assignment, to wit, that the verdict was not sustained by the evidence. The petition alleged the official capacity of Ruby, and the execution of his official bond. It then alleged that in the performance of his duties as sheriff Ruby sold certain land under an order of sale issued out of the district court of Phelps county in an action wherein the plaintiff foreclosed a mortgage upon said land; that, after paying the costs, Ruby had remaining from the proceeds of said sale the sum of $743.07; that he had paid to the plaintiff the sum of $308.07, and had neglected and refused to pay to the plaintiff the remaining $435, the whole amount due the plaintiff under the decree being $1,351; that thereafter a motion had been filed for the amercement of the sheriff: that due notice thereof was given; and that a judgment of amercement had been entered in the sum of $435. Wherefore plaintiff prayed judgment. The defendants, by their answer, admitted the official capacity of Ruby, and the execution of the bond. They further admitted the sale of the land as alleged, and that, after paying costs, Ruby “had remaining in his hands from the proceeds of said sale the sum of $708.07.” As a defense they then pleaded that Ruby paid in to the clerk of the court that sum, and thereby fully discharged his duty; and that thereafter he was induced by Ellsworth, the deputy clerk of the court, to sign a receipt on the docket for said sum, whereby he acknowledged having received said sum back from the deputy clerk; that immediately after signing said receipt Ruby and Ellsworth agreed that the money should not be paid over, and that no money was, in fact, paid back by the clerk to Ruby; that said receipt was to be canceled, but Ellsworth failed to do so; that the signing of said receipt was not an official act, but was performed after the sheriff discharged his full duty, and was, therefore, not binding upon the defendants. Secondly. The defendants alleged that the judgment of amercement was made without notice to Ruby, and was void. And, thirdly, they alleged that the plaintiff, by its counsel, entered into an agreement with Ellsworth whereby it was agreed that Ellsworth had the money in his possession; that plaintiff received from Ellsworth $308.07, and agreed with Ellsworth, in consideration of the payment thereof, to extend the time of payment of the remainder until such time as it was convenient to Ellsworth. The reply denied the averments of the answer.

The evidence seems to show that a conspiracy was entered into between Ellsworth, Ruby, and Dravo, the purchaser of the land at the foreclosure sale, whereby the purchase money was paid in the first instance to the clerk, the sheriff gave his receipt to the clerk therefor on the docket, Ellsworth gave to Ruby his individual receipt in return, and then, according to Ellsworth's testimony, lent the money to Ruby; and all this for the purpose of permitting Dravo to institute an action, and garnish the fund. What became of the garnishment proceedings does not appear. What the liability of the sheriff and his bondsman would be under this peculiar state of facts we need not consider. We must treat the evidence in the light of the issues made by the pleadings. The defendants admitted that Ruby had made the sale, and that he had remaining in his hands $708.07. As a defense they pleaded: First, that he had discharged his liability by paying this money to the clerk; second, that the judgment of amercement was void for want of notice; third, that the...