Petition of Lake, Deputy-Sheriff

• Decision Date: 20 February 1886
• Citation: 10 A. 653,15 R.I. 628
• Parties: Petition of LAKE, Deputy-Sheriff, etc.
• Court: Rhode Island Supreme Court

10 A. 653

15 R.I. 628

Petition of LAKE, Deputy-Sheriff, etc.

Supreme Court of Rhode Island.

February 20, 1886.

This was an application of Lake, a deputy-sheriff of the county of Newport, addressed to the court of common pleas for permission to amend his return on an execution.

William P. Sheffield, for petitioner.

DUEFEE, C. J. This is a motion for leave to amend a return on an execution. The execution issued on a judgment recovered by Preston B. Richmond, tax collector, against Edward W. Howland, in the court of common pleas, in Newport, in May, 1881. It was served by the petitioner as deputy-sheriff by levy upon all the right, title, and interest of said Howland in two parcels of land in Little Compton. A sale under the execution took place pursuant to notice, February 13, 1882. One of the parcels advertised to be sold first was sold for $100; "which sum," the return states, "not being sufficient to pay and satisfy this execution, I then and there sold 17 acres and 2775-10000 of an acre of the second named and described lot of land at twenty dollars an acre, being for the sum of $345.55, to Charles W. Howland, of said town of Little Compton, who was the highest bidder, for the further and full satisfaction of this execution." The second lot contained about forty acres. The deed given purported to convey the 17.2775 acres on the north side of the lot. The motion states that the petitioner sold the 17.2775 acres from off and along the northerly side of the lot, and prays leave to amend the return so that the same shall correspond with the fact, by inserting therein, next after the words, "not being sufficient to satisfy this execution," the words following, to-wit, "I then and there proceeded to sell, and did sell, from off and along the northerly side of the said secondly described parcel of land," so that the return will accord with the conveyance. The motion is verified by the petitioner's affidavit.

Several objections are urged to the motion. The first is that the petitioner no longer holds the office which he held when the levy and sale were made, being then deputy-sheriff under one Henry Crandall, whereas he is now deputy under the successor of said Crandall. The question is whether a sheriff or his deputy can be permitted to amend a return after the expiration of his office. Courts are in the habit of allowing their officers to amend their returns almost as a matter of course, for the purpose of sustaining proceedings before them, upon being satisfied that the amendment is according to the fact, unless new rights have arisen founded on the error or defect; for the amendment does not change the fact, but only supports it by new evidence. The amendment, duly made, operates, by relation, from the time of the original return. The law to this extent is too familiar to require any citation of authority. We think it is also perfectly well settled that an officer may be permitted to amend after his term of office has expired. Adams v. Robinson, 1 Pick. 461; Blaisdell v. The Wm. Pope, 19 Mo. 157, 159; Morris v. Trustees, 15 Ill. 266; Howell v. Insurance Co., 62 Ill. 50; Bwiggins v. Cook, 71 Ind. 579; Gay v. Caldwell, Hardin, 63; Scruggs v. Scruggs, 46 Mo. 271. In the two latter cases the amendment was allowed after the lapse of several years. In...