Foley v. Jones

• Decision Date: 28 February 1873
• Citation: 52 Mo. 64
• Parties: JOHN FOLEY, Plaintiff in Error v. JAMES M. JONES, Defendant in Error.
• Court: Missouri Supreme Court

52 Mo. 64

JOHN FOLEY, Plaintiff in Error

v.JAMES M. JONES, Defendant in Error.

Supreme Court of Missouri.

February Term, 1873.

Error to Clay Circuit Court.

Woodson & Lincoln and Samuel Hardwick, for Plaintiff in Error.

Plaintiff could not bring his suit until he knew he had a right of action; and the improper act of defendant prevented his knowing it. (2 W. S., 920, § 24; Arnold vs. Scott, 2 Mo., 14; Harper vs. Pope, 9 Mo., 402; The First Massachusetts Turnpike Corporation vs. Field, et al., 3 Mass., 201; Homer vs. Fish, et al., 1 Pick., 435; Titus Wells, Exe'r, &c., vs. Fish & Winsor, 3 Pick., 74; Stephens vs. St. Louis National Bank, 43 Mo., 388; Angell on Limitations, § 186.)

Where an improper act of defendant prevents the commencement of an action against him, he cannot claim the benefit of the statute. (Smith Adm'r. vs. Newbey, 13 Mo., 165.)

J. W. Jenkins, for Defendant in Error.

The statute commences to run from the time of the return. (Bank, &c. vs. Childs, 6 Cow., 238; Miller vs. Adams, 16 Mass., 456; Caesar vs. Bradford, 13 Mass., 169.)

Want of knowledge of the facts necessary to enable the plaintiff to bring suit, does not prevent the statute from running. (Smith vs. Newbey, 13 Mo., 159; Troup vs. Smith, 20 Johns., 33; Granger vs. George, 5 Barn & Cress, 149; Leonard vs. Pitney, 5 Wend., 30; Allen vs. Mille, 17 Wend., 202; Short vs. McCarthy, 3 B. & A., 626; Brown vs. Howard, 2 B. & B., 75.)

The return of a writ by the sheriff is a part of the public record of the Court, and imparts notice of what it contains to the whole world. (Stephens vs. Beckes, 3 Blackford, 88; Ballantine on Lim., 92, 96.)

The plaintiff is chargeable with knowledge of the facts, if it was within his reach, which it clearly was in this case. (Farnam vs. Brooks, 9 Pick., 212; Cole vs. McGlathry, 9 Greenleaf, 131.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought against the defendant, who was formerly Sheriff of Clay County, for making a false return.

The petition states in substance that on the 22nd day of April, 1860, plaintiff and others became bound as indorsers on a note for one Michael B. Rice, for the sum of two hundred dollars, which was negotiated to the Farmers' Bank of Missouri; that on the 22nd day of March, 1866, said bank instituted suit on said note against said parties and against the plaintiff; that summons was issued in said cause and placed in the hands of the defendant, then Sheriff of Clay County, on the 23rd day of March 1866; that the defendant on the 7th day of April, 1866, made the following false and fraudulent return: “I certify and make return that I executed the within writ, by delivering a true copy of the petition and writ to Michael B. Rice.” That he also on the same day made the following false return on said writ: “I further certify and make return that on the day above named, I executed the within writ by delivering a copy of the writ to Andrew Foley, Thomas I. Kidd and John Foley,” &c.

The petition then alleges that defendant did not serve said writ on any of the defendants therein named, and particularly that he failed in any manner whatever to serve the same on plaintiff. That plaintiff had no knowledge that such a suit was instituted, and that defendant failed to notify him as required by law. That on the 28th day of April, 1866, judgment was rendered in said cause for two hundred and seventy four dollars. That the first notice plaintiff had of the pending of said suit, or of the judgment, was in 1869, when money in the Commercial Savings Bank, in Liberty Mo., to the credit of plaintiff was garnished and collected, and applied to the payment of said judgment, on the-- day of--1869. That plaintiff had a meritorious and just defense to said action at the time of the commencement thereof, which he could have made fully appear to the court if he had been summoned; that said note had been paid off by plaintiff in August, 1861, (setting forth the manner in which it was paid;) that he could have made that fact appear and have successfully defended against said note but for the false return made by the defendant, by reason of which false return he was damaged in the sum of four hundred and fifty dollars, for which he asks judgment.

This action was commenced March 3, 1871.

Defendant filed his answer, pleading first the statute of limitations, that more than three years had elapsed between making the return, and the bringing of the action. He then denied that he made a false return, and denied that plaintiff could have successfully defended the action.

Plaintiff filed a replication denying the charge that the right of action did not accrue within three years; alleged that the payment by plaintiff of the money he was compelled to pay by reason of the false return, was not paid until about the month of October 1869, and that plaintiff had no notice of the institution of said suit till his money deposited in the bank was garnished, which was in October 1869, and within three years before the commencement of this action. The cause...