Morrissey v. Carter
| Decision Date | 01 July 1924 |
| Docket Number | 13502. |
| Citation | 229 P. 510,103 Okla. 36,1924 OK 657 |
| Parties | MORRISSEY v. CARTER et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 30, 1924.
Syllabus by the Court.
The action against the sheriff and the surety on his official bond for damages growing out of the false return of the sheriff that he served the summons personally, when as a matter of fact he did not make any service, is based upon the wrongful act in making the false return, and the same is barred after two years from date of filing such return under paragraph 3, § 185, C. S. 1921, subject to toll of the statute till the discovery of the falseness of the return.
Where a party against whom a cause of action has accrued in favor of another by a false return on the process, stating that service was obtained when there was no service, the limitation defined in third paragraph of section 185, C. S 1921, is applicable, and the same does not commence to run till the fraud is discovered or by reasonable inquiry could have been discovered.
The statute of limitation under section 185, C. S. 1921, where there is fraud amounting to concealment of the wrongful act which the original party is prevented from knowing when the wrongful act was done, and the damages are consequential rather than direct, does not commence to run till the discovery of the fraud or reasonable opportunity for such discovery, and until the damages are apparent or made so by reasonable inquiry.
Where the items of damages are in issue, and there is any conflict in the evidence in a law case as to the same, or the aggregate amount that should be recovered, these are matters for the jury to determine from all the evidence in the case under proper instructions of the court, and this court will not render judgment in such a case, in the first instance unless the evidence is so clear that only one conclusion can be reached by all reasonable minds.
Commissioners' opinion, Division No. 3.
Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
Action by Dan Morrissey against James M. Carter and another. From a judgment for defendants, plaintiff appeals. Reversed, and remanded with instructions.
Porter H. Morgan and Harlan T. Deupree, both of Oklahoma City, for plaintiff in error.
Wilson, Tomerlin & Threlkeld, and Ross & Thurman, all of Oklahoma City, for defendants in error.
The plaintiff in error, plaintiff below, commenced this action in the district court of Oklahoma county, against James M. Carter, former sheriff of Canadian county, and the American Surety Company of New York, defendants in error, defendants below, to recover damages for an alleged misfeasance, upon the part of one Emery Barker, a deputy of the said James M. Carter. The facts in the case are substantially as follows:
During the years 1917 and 1918 James M. Carter was sheriff of Canadian county, and Emery Barker was one of his deputies. The American Surety Company was surety on the official bond of said sheriff. About August 24, 1919, the plaintiff filed suit in Oklahoma county to foreclose a real estate mortgage to satisfy note for $5,331.11, with interest and attorney's fees. Summons was issued directed to the sheriff of Canadian county, to be served on the mortgagors O. A. Hurst and Leona Hurst, his wife. The summons was placed in the hands of Emery Barker, the said deputy, who made the service of the summons by leaving a copy at the office of the American Packing Company, where the said O. A. Hurst was employed, and he left a copy of the summons at the home of Mrs. Morrison, in El Reno, for Mrs. Leona Hurst, and made his return showing that personal service was had on the defendants.
The defendants made no appearance in the case, and on February 1, 1918, judgment was obtained in the foreclosure suit against the defendants, both for a money judgment and foreclosing the mortgage.
The money judgment was for $5,568.05, principal and interest to date, and $300 attorney's fees; said judgment to bear interest at 10 per cent. interest from its date. On September 10, 1918, more than 6 months after the date of the judgment, the property described in the mortgage and judgment was sold, the plaintiff buying the same for the sum of a $1,000 and after paying costs in the case applied on the judgment the balance in the sum of $963.50. About April 6, 1920, another execution was issued for the amount remaining unpaid on said judgment and this execution was levied upon real estate belonging to the defendants in Oklahoma county, and appraised for the sum of $50,000, and on April 14, 1920, while the sale of this property was being advertised, the said defendants O. A. Hurst and Leona Hurst filed motions to vacate and set aside the judgment rendered on February 1, 1918, alleging as grounds therefor that they were never served with summons in said action and had not made any appearance in the case, and upon a hearing before the court the judgment was set aside and an order was made for alias summons against said defendants. The sale of the property levied on by the second execution failed. After service of alias summons on the said defendants they appeared and pleaded the statute of limitations, which was sustained and the action failed. Thereafter this action was commenced on March 16, 1921, to recover damages as above stated in the sum of $4,604.55, together with $3.40 court costs and interest on the sum of $5,568.50 from February 1, 1918, to September 10, 1918, and interest on the sum of $4,604.55 from September 10, 1918, to March 10, 1921, and also $300 attorney's fees, making the total sum of $6,458.39, together with interest on the sum of $4,604.55 at the rate of 10 per cent. interest per annum from March 10, 1921, until paid.
The plaintiff in his petition stated the facts as above set out and recited the bond of the sheriff with the American Surety Company of New York, as surety, which bond was in the sum of $10,000, and was in general for the faithful performance of the sheriff's duties, and asks for judgment against the sheriff and the surety company. The motion to strike and to separately state and number causes of action being overruled, the defendants filed their separate answers, being in form and substance, consisting of a general denial, and admitting their identity and execution of bond, and pleading the 3-year statute of limitation against the action, and the plaintiff replied to the plea in bar that the statute did not commence to run because the fact of the failure to obtain personal service of the summons on O. A. Hurst and Leona Hurst was concealed from the plaintiff by the false and fraudulent return on the summons, showing personal service, and that the statute did not commence to run until the discovery of the fact. The cause was tried to the court, and on March 2, 1922, the court rendered judgment against the plaintiff and in favor of the defendants, sustaining the plea of the bar of the statute against the action, and the plaintiff appeals by petition in error and case-made, urging two propositions:
1. The question decisive of this case is whether or not the action was barred by the statute of limitations. It may be conceded that the service attempted by the deputy sheriff on September 4, 1917, as shown by return of summons, was void, and the return was false and misleading, and rendered the sheriff liable for any resulting damages. Section 5895, C. S. 1921.
It may be further conceded that the plaintiff was damaged in the amount alleged in the petition, and he did not learn of the failure to get personal service or the falseness of the return on the summons till April 14, 1920, when the enforcement of the second execution was in process, and at the time the defendants in that case apeared and moved to vacate the judgment which was 2 years 6 months and 10 days from the failure of the deputy sheriff to serve the summons and from the date of the return on said summons. The court did not pass on the motions to set aside the judgment until April 23, 1920, on which date they were sustained, and this action for damages was not commenced until March 16, 1921, being 3 years 5 months and 12 days from the attempted service of summons, and less than 2 years from the discovery of the false return, and less than 5 years in either case. The bond of the officer serves the purpose as security for any derelictions of the officer and within the limitations of the statutes not exceeding 5 years. the statute of limitations (section 185, C. S. 1921) provides as follows:
To continue reading
Request your trial