Selover v. Sheardown

• Decision Date: 18 July 1898
• Parties: SELOVER v SHEARDOWN.
• Court: Minnesota Supreme Court

73 Minn. 393

76 N.W. 50

SELOVERvSHEARDOWN.

Supreme Court of Minnesota.

July 18, 1898.

(Syllabus by the Court.)

Where a ministerial officer, in the discharge of a special duty to an individual, performs it negligently, an action lies in behalf of the individual thereby injured. Held, that the defendant officer owed a duty to the plaintiff to furnish him the required information, and which he did negligently, to the plaintiff's injury, and hence the defendant was liable in damages by reason of such negligence.

Appeal from district court, Winona county; Arthur H. Snow, Judge.

Action by George H. Selover against J. W. Sheardown. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

Geo. H. Selover, in pro. per.

P. Fitzpatrick, for respondent.

BUCK, J.

The questions involved upon this appeal arise upon a demurrer to the complaint, the claim being made that the latter does not upon its face state facts sufficient to constitute a cause of action. The allegations in the complaint are substantially as follows: That plaintiff, who was an attorney at law, in February, 1894, with other attorneys, who have assigned their rights to him, entered into an agreement with the city of Wabasha to prosecute a claim of $60,000 against the Chicago, Milwaukee & St. Paul Railway Company, said attorneys to pay all costs and expenses of the suit against said company in the prosecution of the claim. The suit therefor was duly commenced in the district court of Wabasha county, but afterwards duty removed to the United States circuit court of Minnesota, First division, where it was tried June 4 and 5, 1895, and a verdict rendered in favor of the company; and on June 6, 1895, after recording the said verdict, judgment of dismissal was entered in the minutes of said United States court. On December 4, 1895, two days before the expiration of the six months from the entry of said judgment of dismissal (being the time allowed for appeal), the plaintiff herein, as one of the attorneys for the city, telegraphed the following inquiry, addressed to the “Clerk of U. S. Court, Winona, Minn.,” to wit: “Was judgmententered Wabasha-Milwaukee Case? If so, when? Answer.” The same day defendant, then the duly-appointed and acting deputy clerk of said court, answered said telegram as follows: “Judgment not entered;” signing said telegram, “J. M. Sheardown, Deputy,”-he then knowing that judgment of dismissal had been entered, as above stated, June 6, 1895. Subsequently the defendant and the attorneys for the said railroad company notified plaintiff that judgment had been entered in said action on the 16th day of December, 1895, against said city and for costs. Plaintiff also alleges, in substance: “On January 31, 1896, the plaintiff and his associate attorneys for the city caused to be issued, in the name of the U. S. circuit court of appeals for the Eighth circuit, a writ of error to said circuit court in said action. That on March 11, 1896, a transcript of the record was filed in the office of the clerk of said appellate court. That said transcript was printed by said last-named clerk, and copies thereof delivered to plaintiff and his associates, in April, 1896, and from said printed record plaintiff and his associates learned for the first time that judgment had been entered in said action on June 6, 1895, or at other time than December 16, 1895. On May 4, 1896, on motion of said railway company, said appellate court dismissed said writ of error on the ground that the same was sued out more than six months after entry of final judgment in the action, and sent r...