State ex rel. Kearney v. Finn

• Decision Date: 07 February 1882
• Citation: 11 Mo.App. 400
• Parties: STATE OF MISSOURI, EX REL. ABBEY KEARNEY ET AL., Appellant, v. JOHN FINN ET AL., Respondents.
• Court: Missouri Court of Appeals

11 Mo.App. 400

STATE OF MISSOURI, EX REL. ABBEY KEARNEY ET AL., Appellant,

v.JOHN FINN ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 7, 1882.

1. In an action for back taxes the sheriff's return to the summons was “not found,” though the defendants were residents of his bailiwick. The law provides that in such case, “the court, being first satisfied that process cannot be served,” shall make an order of publication. Upon the return of the writ, publication was made. The defendants, having no actual notice, made default, and judgment was rendered against them and their land sold. Held, that the sheriff was liable for nominal damages for the false return; but that, the act of the court intervening, his negligence was not the proximate cause of the injury, and hence he was not liable for actual damages.

2. The intervention between a prior wrong-doer and a subsequent damage, of the act of another which contributes to the injury, relieves the prior wrong-doer, though the act of the intervenor be a judicial one.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

J. D. JOHNSON, for the appellant: A sheriff is liable for damages resulting from the making of a false return of process, similar to the one involved in this case.-- Bolles v. Bowen, 45 N. H. 125; Davis v. Richmond, 35 Vt. 419; Waterhouse v. Gibson, 4 Me. 234; Tomlinson v. Long, 8 Jones L. 469; Wright v. Keith, 24 Me. 164; Albright v. Tapscott, 8 Jones L. 473. Without the return of “not found,” the court could not have made the order for giving notice by publication, and all the proceedings in the case, from the making of the order to the sale of the property, followed as a direct and immediate consequence of the false return.-- Brayser v. McLean, L. R. 6 Priv Co. App. 398.

E. T. FARISH, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This is an action against a sheriff and his sureties, for damages for a false return. The relatrix, Mrs. Kearney, was the owner of a house and lot in St. Louis on which the taxes for the year 1875, amounting to the sum of $18.21, were due and in arrears. On May 29, 1878, the tax collector instituted a suit under what is known as the back-tax law, to enforce the lien of the state for these taxes. A summons was issued in accordance with the requirements of the statute, against Mrs. Kearney and her husband, was placed in the hands of the defendant, as sheriff, which, on October 7, 1878, was returned by him as follows: “The within-named defendants cannot be found in the city of St. Louis.” This return was technically a false return. Mrs. Kearney and her husband were, at the time, householders in the city of St. Louis. On the application of the attorney of the tax collector, an order of publication was awarded by the court; publication was made as required by the statute; the owners of the property not appearing, the case proceeded to judgment, which was rendered by default, for the sum of $23.27, and the costs of the suit. A special execution was issued, and, under it, the property was sold to J. D. Lawnin for $380; a sheriff's deed was executed to him therefor; and he afterwards recovered the property from these relators in an action of ejectment. Until service of summons in this action of ejectment, neither of these relators knew that this property was delinquent for taxes, or that any proceeding had been instituted or prosecuted against it for the foreclosure of the state's lien. According to the case made by them on this record, they were thus deprived of a property of the alleged value of $4,000, in consequence of failing, through ignorance and inadvertence, to pay the taxes which had been assessed against it for a particular year, amounting to the small sum of $18.21. They now seek to recover from the sheriff and his sureties, the damage which they have thus sustained, upon the theory that the sheriff, by wrongfully returning the original writ of summons, “not found,” put in motion against their property, the machinery of the law, so that, in the regular course of judicial procedure, they were deprived of their property without their knowledge and without their fault.

My first impressions of this case were that, it was very clear that these relators had no cause of action for more than nominal damages. After examining a number of adjudications bearing upon the questions here involved, I confess I do not feel so clear: I think this is a case where well-informed judges might possibly differ in opinion; but my best impressions are that this judgment ought to be affirmed; and I will proceed to state the reasons which have brought me to this conclusion.

It has been found necessary, in order to prevent confusion and uncertainty in the administration of justice, to establish and adhere to the rule that the return of a sheriff, or other officer whose duty it is to execute the process of a court, imports absolute verity and cannot be averred against or traversed, except in an action against him for a false return. As the law has denied to a person aggrieved or damnified by a false return of a sheriff, every other remedy except an action against the sheriff and his sureties, it has been correspondingly liberal towards persons thus aggrieved, nd strict to wards the sheriff, in all matters pertaining to this action. The plaintiff makes out a prima facie case by showing that the return was false or erroneous, and the burden is cast upon the sheriff of justifying the facts returned, or of excusing his negligence in the premises. So strict is the rule, that, where it appears that the return is technically false, nominal damages go against the sheriff, although it appears that he was guilty of no negligence or actual wrong in the premises. 2 Sedgw. on Dam. (7th ed.) ^*511, 512, and note b.

Necessarily, all actions of this kind are predicated upon non-feasance or misfeasance by the sheriff, or those for whom he is responsible. A cursory examination of the numerous cases on this subject will show that nearly all of them are grounded on the principle of non-feasance. They are brought by plaintiffs in actions who have lost their debt or damages by reason of the failure of the sheriff, or his deputies, properly to execute process placed in his hands at the instance of the plaintiff, or to pay over to the plaintiff moneys collected for him. These actions are grounded upon the idea that the sheriff, when he accepts his office, engages with the state to perform, for the benefit of individuals, certain acts, when called upon by, or on behalf of them so to do; and, that for a failure to do any such acts, he becomes liable in damages to the person who has called upon him to do them; on the general principle that where one person voluntarily assumes, whether for a reward or gratuitously, a duty toward another, he makes himself liable to that other for any injury which may accrue to that other from his negligence in performing, or in failing to perform it.

He is also liable for misfeasance done under color of his office, on the same principle as though he were a private person. The great body of decisions under this head are those in which he has rendered himself liable as a trespasser by executing void process, by executing process on the wrong party, or on the goods of the wrong party, or otherwise by executing process in an unlawful or oppressive manner.

To this class of cases belong those in which the sheriff, by making a false return, has put in operation the ordinary machinery of a court of justice against a person who was not amenable to it, whereby damages have accrued to such person without any fault on his part. Thus, if a sheriff falsely return that he has served upon a person notice of a suit to foreclose a mortgage upon the land of such person, so that, in the ordinary course of the court, the mortgage is foreclosed, and his equity of redemption barred, he having no knowledge of the proceeding, the sheriff will be liable to him in damages. Davis v. Richmond, 35 Vt. 419. Or, if the sheriff falsely return that a person arrested by him under a capias has been rescued by a third person, whereby such third person, precluded from denying the return, is punished for contempt of court, he may recover damages of the sheriff. Brayser v. McLean, L. R. 6 Priv. Co. App. 398.

While, as before stated, the sheriff will be liable for nominal damages where the return is technically false, although he may have exonerated himself from actual fault, and while, where he is proceeded against for negligence in the performance of his duties, he is held to a very strict measure of diligence, akin to that of a common carrier of goods (2 Thomp. on Neg. 825); on the other hand, where he has rendered himself liable to another by reason of something done or omitted in the execution of lawful and valid process, his liability is generally limited to the actual damages which have been inflicted upon the person aggrieved. 2 Sedgw. on Dam. (7th ed.) ^*505-508, and note a to page 508. In determining what these damages are, the conduct of the person complaining comes into consideration. The person injured by the wrongful act of the sheriff is under the same obligation to do what he reasonably may to mitigate the accruing damages, or to prevent their exaggeration, which the law puts upon injured persons in other like situations. See, as to this general rule, Bardwell v. Jamaica, 15 Vt. 438; Jenks v. Wilbraham, 11 Gray, 143; Loker v. Damon, 17 Pick. 284; Berry v. Carle, 3 Me. 269. “If the party injured has it in his power to take measures by which his loss will be less aggravated, this will be expected of him.” The same rule is sometimes invoked in determining the quantum of damages in actions for breaches of contracts ( Miller v. Mariner's Church, 7 Me. 57); and it has been held to...