Kangley v. Rogers

• Decision Date: 22 April 1915
• Docket Number: 12430.
• Citation: 85 Wash. 250,147 P. 898
• Parties: KANGLEY v. ROGERS et al.
• Court: Washington Supreme Court

147 P. 898

85 Wash. 250

KANGLEY v. ROGERS et al.

No. 12430.

Supreme Court of Washington

April 22, 1915

Department 2. Appeal from Superior Court, King County; Walter M. French Judge.

Action by Mary Kangley against Nannie Rogers, executrix, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Herr Bayley & Wilson, of Seattle, for appellants.

Wright Kelleher & Caldwell, of Seattle, for respondent.

MORRIS C.J.

Action to recover damages claimed to have been sustained because of the failure of a notary public to faithfully discharge the duties of his office and exercise due diligence in certifying that one Alice A. Gunby, known to him to be the wife of Joseph C. Gunby, personally appeared before him and acknowledged the execution of a real estate mortgage in which the respondent was named as mortgagee. Subsequent to the commencement of the action the notary died and the action proceeded against his executrix and the surety on his official bond. That Alice A. Gunby did not execute, nor appear before the notary and acknowledge the execution of this mortgage, and that her signature is a forgery, is admitted.

Much is said in the briefs as to the degree of care to be exercised by a notary public in taking and certifying acknowledgments when he does not personally know the party appearing before him, and what, under such circumstances, would be such negligence as to subject the notary and his sureties to liability; but, after reading this record, we do not regard it as necessary to answer these questions, as we are satisfied that no one appeared before the notary assuming to be Alice A. Gunby. The lower court so expressed an opinion at the conclusion of the trial, but in the findings contented itself with a finding that the notary failed and neglected to faithfully discharge the duties of his office, and failed and neglected to exercise due diligence. It is admitted by all the authorities, and must necessarily be so, that certifying to a wife of any person as present who was not is such negligence as to render the notary liable on his official bond as for a false certification. State ex rel. Savings Trust Co. v. Hallen, 165 Mo.App. 422, 146 S.W. 1176.

The next contention is that, under the rule announced in Day v. Henry, 81 Wash. 61, 142 P. 439, the judgment cannot be sustained as a community judgment. It was held in the cited case that a judgment rendered against a sheriff, who was at the time a married man, for a wrongful levy made by him as sheriff, was not a judgment that could be...