Fire Association of Philadelphia v. Ruby

• Decision Date: 05 November 1896
• Docket Number: 6636
• Citation: Fire Association of Philadelphia v. Ruby, 68 N.W. 939, 49 Neb. 584 (Neb. 1896)
• Parties: FIRE ASSOCIATION OF PHILADELPHIA v. JAMES A. RUBY ET AL
• Court: Nebraska Supreme Court

68 N.W. 939

49 Neb. 584

FIRE ASSOCIATION OF PHILADELPHIA v. JAMES A. RUBY ET AL

No. 6636

Supreme Court of Nebraska

November 5, 1896

ERROR from the district court of Phelps county. Tried below before BEALL, J.

REVERSED AND REMANDED.

G Norberg and Dryden & Main, for plaintiff in error.

S. A Dravo, F. G. Hamer, C. H. Roberts, and Stewart & Munger contra.

OPINION

IRVINE, C. J.

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 plaintiff's attorneys had recognized the money as being in the clerk's hands, and had agreed with him, in consideration of payment of part, to extend the time of paying the remainder. Upon these issues the evidence did not sustain the verdict.

Section 498 of the Code of Civil Procedure provides that upon the return of any writ of execution or order of sale for the satisfaction of which any lands have been sold, the officer making the sale "may retain the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto agreeable to the order of the court." Section 507 provides that "If on any sale made as aforesaid there shall be in the hands of the sheriff or other officer more money than is sufficient to satisfy the...