State ex rel. Kearney v. Finn

• Decision Date: 18 January 1887
• Citation: 24 Mo.App. 344
• Parties: THE STATE OF MISSOURI TO THE USE OF ABBIE KEARNEY ET AL., Respondent, v. JOHN FINN ET AL., Appellants.
• Court: Missouri Court of Appeals

24 Mo.App. 344

THE STATE OF MISSOURI TO THE USE OF ABBIE KEARNEY ET AL., Respondent,

v.JOHN FINN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 18, 1887.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

E. T. FARISH, for the appellants: The relators, having failed to use the means of preventing the loss of their property, can not be allowed to hold the sheriff liable, to the value of their property. The State ex rel. v. Heinrich, 14 Mo. App. 146. An execution having been issued and placed in the hands of the sheriff in the usual course, and such execution having been enforced and paid, operated a complete discharge of any liability on the cause of action stated in the petition. Freeman on Judgments, sects. 462 and 466.

C. P. & J. D. JOHNSON, for the respondent: The relators knew nothing of the judgment in the tax case, nor of the sale of their property under it, until after the title to the latter had passed irrevocably from them. The setting aside of the judgment would have availed them nothing, as the sale passed the title to the purchaser thereat. Tower v. Lennox, 52 Mo. 115; Bates v. Bank, 15 Mo. 309; Jennings v. Brizeadine, 44 Mo. 333; Jones v. Talbot, 9 Mo. 125; McNair v. Biddle, 8 Mo. 266; Castleman v. Relfe, 50 Mo. 588; Gott v. Rowell, 41 Mo. 416; Card v. Lackland, 49 Mo. 454.

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

The opinion of this court on a former appeal is found in 11 Mo. App. 400. The relators, having obtained judgment for nominal damages only, appealed to this court, which affirmed the judgment. They then sued out a writ of error from the supreme court, and that court reversed the judgment and remanded the cause for new trial. 87 Mo. 311.

The action is on a sheriff's bond, against him and his sureties, for official misconduct in making a false return. The relators claim that the sheriff, in a back tax case, prosecuted against them, made a false return of “not found” on the summons, although the relators were residents of the city of St. Louis, and could have been found by the exercise of proper diligence on his part, and that, in consequence thereof, the relators were not advised of said suit, until after judgment was rendered therein against the property of the relator, Abbie, and such property sold to a third person, whereby it was wholly lost to her, to her damage in the sum of five thousand dollars.

It appears, from the opinion of this court and of the supreme court heretofore rendered herein, that the only question raised by the record on the former appeal, was whether the direct and immediate cause of the relators' damage was the sheriff's return of not found, or whether the proximate cause of such loss was the order of the circuit court, dispensing with personal service, and authorizing constructive service upon the relators by publication.

This court held that, inasmuch as the proceeding in a back tax case is sui generis, and the court can not authorize service by publication, unless it is first satisfied that the defendant is, in point of fact, beyond its process, the sheriff's return did not furnish the sole evidence upon which the court acted, and could not be considered the proximate cause of the resulting injury.

This view did not obtain the sanction of the supreme court. That court held, that according to the usual and well known practice in the court, the order of publication, judgment, and sale were the natural results of the false return, though the further order of the court was necessary thereto and founded thereon.

The last trial resulted in a verdict for the relators for $1,180, and no question is made but that the verdict is warranted unless the trial court erred in matters of law.

The defendants appealing assign the following errors:

1. That the court erred in not vacating the verdict, as unsupported by any substantial evidence of the sheriff's misconduct.

2. That the court excluded legal evidence offered by the defendants, and refused proper instructions asked by them.

3. That the court admitted improper evidence for the relators, against the defendants' objection.

4. That the relators' counsel misbehaved in his address to the jury, by attempting to inflame their prejudices.

5. That the former judgment was paid and satisfied and such satisfaction is a bar to this proceeding.

I. The delinquent tax sued for was a tax for the year 1875. The summons was issued March 29, 1878, and returned, “not found,” October 7, 1878. The relators' evidence tended to show that they resided, since 1873, at the same place in the city of St. Louis. That the relator, Frank, served on juries in the years 1875 and 1876, but not since, and had been a witness in a number of cases prior to the return of the summons. That he had been an extensive building contractor up to 1875, but, suffering from a sunstroke in that year, was temporarily confined in an insane asylum for several months, and after leaving it took no contracts, but worked mostly as a journeyman. That he knew personally several of the sheriff's deputies.

It also tended to show that the official books in the office of the assessor, and of the comptroller of the city, both of which are in the same building with the sheriff's office, and in close proximity thereto, contained his name and exact place of residence, marked in the margin of the books containing the tax entry sued upon, prior to the date of the sheriff's return. Also, that the occupants of the premises against which the back tax suit was brought knew his exact place of residence.

The defendants' evidence tended to show that the sheriff's deputies made reasonable efforts to find the relators. That they made inquiries in the neighborhood of the premises, and on the premises, charged with the tax of an apparent occupant thereof. That they inquired of the attorney charged with the prosecution of the case, and also examined the city directory (which, it is admitted, did not contain the relators' names). That these efforts continued for several weeks, although there was a very large number of writs to be served. That neither of the deputies charged with the service of the writs knew either of the relators personally, and that it was not their habit to go for information to the assessor's or comptroller's office.

This being substantially all the evidence on that point, we are not prepared to say that the court was justified to hold, as a matter of law, that there was no evidence of the sheriff's dereliction. When the relator proved that he was for years previous a resident of the city, engaged in business, occupying continuously the same premises as his residence; that the residents of the property mentioned in the summons knew his exact whereabouts; that the sheriff could have ascertained his residence by stepping into public offices, within a few feet of his own office, and inspecting records accessible to all, the court was warranted, under proper instructions defining the extent of diligence required of a sheriff in such cases, to submit the question to the jury, whether, in view of all the evidence, he did use such diligence in this particular case.

All the instructions which the defendants asked, as to the extent of diligence required of the sheriff, were given. They are full, fair, and in accordance with the opinion of the supreme court in this case.

II. The defendants complain that the court did not permit them to show that the relators knew that their property was subject to...