Thompson v. State ex rel. East

• Decision Date: 27 October 1891
• Docket Number: 233
• Citation: 28 N.E. 996,3 Ind.App. 371
• Parties: THOMPSON ET AL. v. THE STATE, EX REL. EAST ET AL
• Court: Indiana Appellate Court

28 N.E. 996

3 Ind.App. 371

THOMPSON ET AL. v. THE STATE, EX REL. EAST ET AL

No. 233

Court of Appeals of Indiana

October 27, 1891

Petition for a rehearing overruled Jan. 9, 1892.

From the Greene Circuit Court.

Judgment reversed.

E Short, T. Van Buskirk, J. D. Alexander and H. W. Letsinger for appellants.

E. H. C. Cavins, A. G. Cavins, I. H. Fowler and W. A. Pickens, for appellees.

OPINION

NEW, C. J.

This was an action by the appellee against the appellant William E. Thompson, as sheriff, and his co-appellants, sureties on his official bond.

The material averments in the complaint, omitting those about Thompson's election as sheriff and the execution of his bond as such, are as follows: In the circuit court of Greene county Joseph Strong foreclosed a chattel mortgage executed to him by Webster Grim. An order of sale was issued upon the decree, commanding said Thompson, as sheriff of said county, to sell a certain house situate on lot No. 47 in the town of Worthington, in said county. Said house was the property of the relators, and they had the possession thereof before the commencement of said suit, but they were not made parties to the same. On the 28th day of January, 1889, said sheriff, acting under the assumed authority of said writ, and pretending to execute the same according to law, wrongfully, maliciously, and without right, entered said house during a rain storm, and removed therefrom into the street property belonging to the relators, consisting of fresh meats, lard, fixtures, and all the property which they had in said house for the purpose of carrying on a meat shop. By the removal of said goods they were injured and rendered unfit for use, to the damage of the relators in the sum of five hundred dollars.

The appellant William E. Thompson demurred separately, and the other appellants demurred jointly to the complaint, all for want of facts. The demurrers were overruled, and exceptions properly saved.

A joint answer was filed by all of the appellants in four paragraphs.

The first paragraph of the answer admits that at the time mentioned in the complaint, the appellant William E. Thompson was sheriff, as alleged in the complaint, and that the other appellants were his sureties, but denies all other allegations in the complaint.

The second, third and fourth paragraphs of the answer are pleas of justification under the writ named in the complaint. A reply of general denial was filed.

Upon the issues thus joined the cause was tried by a jury, and verdict returned in favor of the appellee for $ 105.

Over motions for a new trial and in arrest of judgment, the court rendered judgment in conformity with the verdict.

The first error assigned by the appellants is that the complaint does not state facts sufficient to constitute a cause of action.

In order to determine the sufficiency of the complaint it is necessary to ascertain upon what theory it is framed.

Every pleading must proceed upon some definite theory, and its sufficiency must be determined by the theory upon which it proceeds. Its theory must be determined from its general character and scope. First Nat'l Bank, etc., v. Root, 107 Ind. 224, 8 N.E. 105; Bingham v. Stage, 123 Ind. 281, 23 N.E. 756; Pearson v. Pearson, 125 Ind. 341, 25 N.E. 342.

We think it manifest, from the averments in the complaint, that the alleged wrongful conduct of the sheriff is predicated upon the fact that the relators, although the owners and in possession of the house which the sheriff was ordered to sell, were not made parties to the foreclosure suit in which the writ was issued. It is not shown when the relators became the owners of the house, whether before or after the execution of the mortgage; nor do we see that this is important, so far as this action is concerned.

When an execution, or order of sale, issues from a court of competent jurisdiction, and is placed in the hands of the sheriff, it is his duty to execute the same according to its terms with reasonable diligence. His duty is ministerial, not judicial. His province is to execute the process regularly delivered to him, and not to sit in judgment upon the regularity of the proceedings upon which it was obtained. Out of this duty arises the necessity of protection to the sheriff.

If the process, to use the customary legal expression, be fair on its face, it will protect the officer. By this is not meant that it shall appear to be perfectly regular, and in all respects in accord with proper practice, and after the most approved form, but what is intended is that it shall apparently be process lawfully issued, and such as the officer might lawfully serve. More precisely, that process may be said to be fair on its face which proceeds from a court, magistrate or body having authority of law to issue process of that nature, and which is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it. Cooley Torts, 538; Noland v. Busby, 28 Ind. 154; State, ex rel., v. Hamilton, 32 Ind. 104; Adams v. Davis, 109 Ind. 10, 9 N.E. 162; Watson v. Watson, 9 Conn. 140; Keniston v. Little, 30 N.H. 318; Caldwell v. Hawkins, 40 Me. 526; Underwood v. Robinson, 106 Mass. 296; People v. Warren, 5 Hill 440; Cornell v. Barnes, 7 Hill 35; Billings v. Russell, 23 Pa. 189; Loomis v. Spencer, 1 Ohio St. 153; Brother v. Cannon, 1 Scam. 200; Glasgow v. Rowse, 43 Mo. 479.

It must not be overlooked, however, that the rule that an officer is justified by his process, when it is fair upon its face, is one of protection merely; and although the officer may execute such process and be protected, yet, if it is in fact void, for want of jurisdiction in issuing it, he may refuse to execute it, and no action will lie against him for such refusal. State, ex rel., v. Hamilton, supra; Newburg v. Munshower, 29 Ohio St. 617; Reid v. Stegman, 99 N.Y. 646, 1 N.E. 672; Earl v. Camp, 16 Wend. 562; Cornell v. Barnes, 7 Hill 35.

When the process seems to be fair on its face, it next becomes necessary to the officer's protection that he proceed upon it as the law directs. And at this point it must be borne in mind that the law constantly presumes that public officers charged with the performance of official duty have not neglected the same, but have duly performed it at the proper time and in the proper manner. In the absence of evidence to the contrary, this presumption will prevail, but it is not an indisputable one, and may be overcome by countervailing evidence.

The fact, if it be a fact, that the relators had purchased the house and were in possession of it when the foreclosure suit was commenced, and the further fact that they were not made parties to said suit, can not affect the sheriff and his sureties, if the order of sale under which he was acting was fair on its face, and the sheriff proceeded upon it lawfully.

For aught that is shown in the complaint, the order of sale under which the sheriff was acting was fair upon its face in all respects. It was a duty, therefore which the sheriff owed the plaintiff in the foreclosure suit, to take possession of and sell the house and other property named in the writ. The proper service of this writ upon the property described therein required the sheriff to take possession of the property, either actually or constructively. For the purpose of reducing the...