State ex rel. Ross v. Case

• Citation: 77 Mo. 247
• Parties: THE STATE ex rel. ROSS v. CASE et al., Appellants.
• Decision Date: 30 April 1883
• Court: United States State Supreme Court of Missouri

77 Mo. 247

THE STATE ex rel. ROSS

v.CASE et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Monroe Circuit Court--HON. JOHN T. REDD. Judge.

REVERSED.

Wm. J. Howell for appellants.

The words in the return alleged to be false are immaterial. Even fraud without damage gives no right of action. No property was levied on or lien lost. Amendments in furtherance of justice are favored and relate back to the original return or matter amended. The court making the amendment had jurisdiction and the necessary parties before it, and if the words objected to in the return had any force, the amendment removed the obnoxious part. Webster v. Blount, 39 Mo. 500; Corby v. Burns, 36 Mo. 194; Scruggs v. Scruggs, 46 Mo. 271; Magrew v. Foster, 54 Mo. 258; Kane v. McCown, 55 Mo. 181; Phillips v. Evans, 64 Mo. 17; Dunham v. Wilfong, 69 Mo. 355. There were no damages proved on the third breach, and the verdict and judgment should have been for defendants. 1 Wag. Stat., 614, § 64; Stephenson v. Judy, 49 Mo. 227.

James Carr for respondent.

Falsehood is the mischief which the statute guards against. R. S. 1855, p. 750, § 65; Tomlinson v. Long, 8 Jones L. 469; Albright v. Tapscott, 8 Jones L. 473; Lemit v. Freeman, 7 Ired. 317; Houser v. Hampton, 7 Ired. 333; Peebles v. Newsom, 74 N. C. 473; Andrew v. Parker, 6 Blackf. 461. The return is conclusive between the parties to the case. Its truth can only be contradicted in a suit against the sheriff for a false return. Macdonald v. Leewright, 31 Mo. 29; Hallowell v. Page, 24 Mo. 590; Stewart v. Stringer, 41 Mo. 400; O'Connor v. Wilson, 57 Ill. 226. An amendment is not allowable after an action for a false return has been commenced against the sheriff, and it is too late after twelve years of litigation. Stewart v. Stringer, 45 Mo. 113; s. c., 41 Mo. 400. The sheriff's return is conclusive against him. He has no right to contradict, vary, change or amend it after suit brought against him for a false return. Boone County v. Lowry, 9 Mo. 23; Gardner v. Hosmer, 6 Mass. 325; Purrington v. Loring, 7 Mass, 388; Butler v. State, etc., 20 Ind. 169; Simmons v. Bradford, 15 Mass. 82; Weld v. Bartlett, 10 Mass. 470; Sheldon v. Payne, 7 N. Y. 453; s. c., 10 N. Y. 398; Flick v. Troxsell, 7 Watts & S. 65. The damages for failure to return an execution in proper time are prima facie the amount specified in the execution. Ledyard v. Jones, 7 N. Y. 550; Bowman v. Cornell, 39 Barb. 69; Patterson v. Westervelt, 17 Wend. 543; Bank v. Curtiss, 1 Hill 275; Pardee v. Robertson, 6 Hill 550; Kellogg v. Manro 9 John. 300.

HOUGH, C. J.

On the 30th day of October, 1858, the relator recovered a special and general judgment against Beverly Frields and C. C. Woodson for $1,567.70 debt, $155.34 damages and $12.80 costs, to be first levied of certain land having a mill thereon, and if the same should not satisfy said judgment, then to be levied of any other goods, chattels, lands and tenements of said Frields and Woodson. Execution issued in pursuance of said judgment, returnable April 27th, 1859. Upon this execution the following return was made: “I executed the within by levying upon one steam saw mill February 23rd, 1859, and by exposing the same for sale on the 12th day of April, after giving ten days notice of time, terms and place of sale, and Alexander Crawford being the last and highest bidder for the same, it was stricken off and sold to said Crawford for the sum of $70. This execution is, therefore, entitled to a credit of $70. This execution ordered returned not satisfied by attorneys T. L. Anderson and Southworth, for plaintiff, May 23rd, 1859, and by summoning as garnishees Beverly Frields, W. W. Wise, J. J. West, Robt. Jenkins, Andrew Jenkins (and others named), on this 21st day of March, 1859.”

The present action was instituted in 1861 against the sheriff and his sureties on his official bond for an alleged failure of said sheriff to execute said writ according to the terms, and the following breaches were assigned: 1st, That the sheriff failed to sell the tract of land described in said execution, according to the command thereof, and levied on and sold a steam saw mill for $70, which was indorsed on the execution as a credit, and summoned sundry persons as garnishees. 2nd, That so much of the return as states that the execution was ordered to be returned not satisfied, by attorneys T. L. Anderson and Southworth, was false. 3rd, That the sheriff failed to return said execution according to the command thereof.

The answer to the first breach alleges that the relator ordered the sheriff not to sell said tract of land, but to sell only the mill thereon. There was a finding and judgment for the defendants on this breach, and it need not be further noticed.

An amended answer to the second breach filed in 1875 admitted the making of the false return, and alleged that the same was made through mistake and misapprehension of a conversation had with said attorneys, and averred that on the 6th day of June, 1873, the circuit court of Audrain county, on motion of said sheriff--the said Ross appearing thereto--by its order granted leave to said sheriff to amend said return by omitting in the same the words, “This execution ordered returned not satisfied by attorneys T. L. Anderson and Southworth, for plaintiff, May 23rd, 1859,” and that said sheriff appeared and in said court amended said return by omitting in the same said words, and that said court thereupon amended said return, and ordered and adjudged that said original return be and the same is reformed and amended as and in conformity with the amended return, which is to stand for said original return; all of which the trial court, on motion of plaintiff, struck out as constituting no defense.

The answer also averred that, when said original return was indorsed on the execution, the same was wholly unsatisfied except said $70, and that said Frields and Woodson were insolvent and had no other property to levy on; to which portion of the answer a demurrer was sustained.

The answer to the third breach denied that the execution was not returned according to the command; averred that the sheriff had all the money that was made on the execution before the court on the return day, and paid it to plaintiff; denied that said tract of land was worth $2,000, as alleged in said breach, and any damages to relator, and averred that said Ross afterward sued out another execution on said judgment and had said land sold for the sum of $61.

The instructions of the court as to the second and third breaches, are as follows:

2. The pleadings show that the return on the execution was false, in so far as it states that the execution was returned unsatisfied by the order of Anderson and Southworth, attorneys for the plaintiff in the execution, and the falsehood of said return will sustain an action against the sheriff and his securities on his official bond, and such false return was a breach of the condition of the bond.

3. The measure of the damages sustained by the breach of the condition of the bond by reason of the false return, is fixed by statute at the amount of the debt then due on the execution, less all payments before or afterward made thereon.

4. The measure of the damages arising out of the third breach assigned in the petition, should that breach be found for the plaintiff, is nominal only, plaintiff having failed to prove any actual damage arising out of said breach.

Numerous instructions were asked by the defendants and refused by the court, of which it will only be necessary to notice the second and seventh, which are as follows:

2. If the court find from the evidence that the relator, Ross, ordered the sheriff to not sell or excused him from...