Scruggs v. Scruggs

• Decision Date: 31 July 1870
• Citation: 46 Mo. 271
• Parties: JOHN W. SCRUGGS, Defendant in Error, v. JAMES A. SCRUGGS AND N. B. SCRUGGS, Plaintiffs in Error.
• Court: Missouri Supreme Court

46 Mo. 271

JOHN W. SCRUGGS, Defendant in Error,

v.JAMES A. SCRUGGS AND N. B. SCRUGGS, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

This suit was commenced at the August term, 1868, of the Circuit Court of Cole county, more than twenty years after the original sale and deed.

Lay & Belch, for plaintiffs in error.

I. There is no pretense that the sheriff, when it is claimed that he made his levy, did any act to show what he had done, or attempted to make any sort of a return on the execution. Here the officer had nothing to amend from, and he was permitted by the court blindly, as it were, to make an entry nunc pro tunc, without its being made to appear how he knew that he was performing a duty then that he should have performed when sheriff, or what knowledge or recollection he had about it.

II. Amendments of all sorts are particularly discouraged by courts where the rights of third parties would be thereby affected. (3 Pick. 445; 8 Mass. 240; 23 Me. 505; 15 Me. 77; 17 Pick. 197; 14 Pick. 31; 6 N. H. 470; 4 Dana, 214; 13 Mass. 270; 10 N. H. 291; 28 Me. 301; 24 Me. 431; 13 Ohio, 220; 1 Dev., N. C., 304; 7 Greenl., Me., 146; 10 Me. 498; Reach v. Fulton Bank, 3 Wend. 573.)

Ewing & Smith, for defendant in error.

The only material question in this case, as we conceive, is as to the amendment of the sheriff's return, and this question is undoubtedly settled by 39 Mo. 500; Blaisdell v. Steamer Wm. Pope, 19 Mo. 157; Irvine v. Scobee, 5 Litt. 70; Muldrow v. Bates, 5 Mo. 214; Corby v. Burns, 36 Mo. 194; 7 Bac. Abr. 195. No third person is injured by the amendment.

CURRIER, Judge, delivered the opinion of the court.

This is an ejectment suit, and it is now here for the third time. (See 41 Mo. 242; 43 Mo. 142.) It is unnecessary to re-state its general facts. The main contest now gathers about the action of the court below in granting leave to amend the sheriff's return upon an execution.

The plaintiff deduces title from James A. Scruggs, one of the defendants, through a sheriff's deed to the former, executed to him in pursuance of a levy and sale under an execution against the latter. The return upon the execution shows that money was derived from a sale of real estate, but the return omits to describe the estate sold, although the deed executed in pursuance of the sale describes it minutely. The sale occurred August 19, 1846. The deed bears date March 16, 1847, and states in its recitals that the sale was duly advertised for twenty days in the Jefferson Inquirer, a newspaper published in the county where the land was situated. The deed was filed for record June 16, 1847.

In the progress of the trial, and against the defendant's objections, the court permitted the sheriff to amend his return; and the return was accordingly amended so as to show what lands were sold and who was the purchaser. Before the amendment was made, the defendant asked leave to examine the sheriff as to the facts of the levy and his means of knowledge respecting it, but the application was overruled.

The right of a sheriff to amend a defective return, on leave of the court, is beyond question, and it makes no difference that he is out of office. Such amendments, in appropriate cases, are allowed even on application of the sheriff's administrator. And there is no specific limitation of time within which this class of amendments must be made; although, after a lapse of years, the court should grant applications with great caution, lest the rights of innocent third parties should be injuriously affected. Such applications are not granted as a matter of right. The granting of them rests in the exercise of a sound discretion on the part of the court. “Amendments of this description,” say the court in Johnson v. Day, 17 Pick. 108, “are not regulated by any certain rules; but the court is bound in every case to exercise a sound discretion, and to allow or disallow an amendment, as may best tend to the furtherance of justice. The forms of the court are always best used when they are made subservient to the justice of the case.” (Blaisdell v. Steamer Wm. Pope, 19 Mo. 157; Webster v. Blount, 39 Mo. 500; Stewart v. Stringer, 4 Mo. 113; Webb v. Joy, 13 Pick. 477; Fowble v. Walker, 45 Ohio, 64; 4 How. 45; Gwynne on Sheriffs, 471; Haven v. Snow, 14 Pick. 28.)

Applying these tests to the action of the court in granting leave to amend, it does not appear that its discretion was improperly exercised. There was a palpable and fatal omission in the return, but the means of correcting the error were readily supplied by reference to the sheriff's deed executed at the time. The facts were all there in enduring form, and the deed had been on record for twenty years. The sheriff was not dependent on his memory for the means of supplying the defects of his return, or for the means of showing with certainty what its defects were. Undoubtedly a party moving for leave to amend should make out and show the mistake beyond any reasonable doubt. (Hovey v. Wait, 17 Pick. 196.) That was done in the case at bar; and the deed furnished the facts to amend by, and to amend with certain accuracy of result.

In Hovey v. Wait, the sheriff was not allowed to amend, for the reason that he had failed to make minutes of the transaction at the time of it, by which his return could be corrected, and some years had then elapsed. There was nothing...