Flynn v. Kalamazoo Circuit Judge

• Decision Date: 09 November 1904
• Citation: 138 Mich. 126,101 N.W. 222
• Court: Michigan Supreme Court
• Parties: FLYNN v. KALAMAZOO CIRCUIT JUDGE.

101 N.W. 222

138 Mich. 126

FLYNN v. KALAMAZOO CIRCUIT JUDGE.

Supreme Court of Michigan

November 9, 1904

Mandamus proceedings by Lawrence Flynn against the Kalamazoo circuit judge. Writ denied.

Wm. A Luby, for relator.

Osborn & Mills, for respondent.

HOOKER J.

A judgment having been rendered against the relator in the circuit court for the county of Kalamazoo, an execution was issued. The sheriff returned that he levied the same upon real estate belonging to the execution debtor, had it appraised under the law pertaining to homesteads, and sold it at public auction for $2,300. Relator claimed that this was a false return, and, on a motion to vacate the sale, sought to contradict the return. This court held that this motion could not prevail in the face of the return standing of record in the case, and it was intimated that a proper practice would be to obtain an amendment of the return. See Flynn v. Circuit Judge (Mich.) 98 N.W 740. Thereupon the relator filed a motion for an amended return, which was denied by the circuit judge upon the ground that an amendment to a return as to a matter of fact must be made voluntarily, and could not be compelled. The following cases cited by the respondent's counsel seem to sustain the decision: In the case of Sawyer v. Curtis, 2 Ashm. 127, decided in 1830, it was held that 'where the sheriff has returned his writ 'Executed,' and he does not ask permission to alter or modify his return, the court has no power to do it, and cannot compel him to make any alteration in it as to matter of fact; and the sheriff is responsible for a false return to the party injured.' In Humphries v. Lawson, 7 Ark. 341, it was held that 'the circuit court cannot compel a sheriff to amend his return to a writ, nor to return any particular state of facts. He has the privilege of amending, and is responsible for a false return.' See, also, Boas v Updegrove, 5 Pa. 516, 47 Am. Dec. 425. In Hewell v Lane, 53 Cal. 217, the court said: 'We are satisfied, however, that the sheriff cannot be compelled in this manner to contradict his return. He cannot, it is well settled, be compelled by the court to correct his return on file against his will.' In Wilcox v. Moudy, 89 Ind. 232, it was said that 'a sheriff's return to a writ is made on his official responsibility, and he can only afterwards amend it, but it must be on leave. The court cannot compel him to correct.' In Washington Mill Co v. Kinnear, 1 Wash. T. 101, it was held: 'If the return be defective, he may be compelled to perfect it; but, if the record shows the return to be complete and perfect, the party who desires to traverse it is required to bring his action against the sheriff, who, on a proper showing, may be compelled to respond in damages for any injury resulting from a false return. It is said in 10 Pickering, C. Cook v. Seymour, ^[1] page 47: 'The sheriff and his deputies have great and confidential powers intrusted to them. Their returns on writs and process are received as true, and are not to be controverted, except in an action for a false return, and then the falsity must be proved.' And in 2 Ashmead, Sawyer v. Curtis, page 127: 'When the sheriff has returned his writ executed, and he does not ask permission to alter or modify his return, the court has no power to do it, and cannot compel him to make any alteration in it as to matter of fact. The sheriff is responsible for a false return to the party injured.' To the same effect, McBee v. State, 1 Meigs, 122; Mentz v. Hamman, 5 Whart. 150, 34 Am. Dec. 546; Sample v. Coulson, 9 Watts & S. 62.' See, also, note to cause of Malone v. Samuel, 13 Am. Dec. 173, and authorities there cited. In Smith v. Gaines, 93 U.S. 343, 23 L.Ed. 901, the federal Supreme Court said: 'As regards the effort to compel the marshal to amend his return, we...