No. 263 | 6th Cir. | Feb 2, 1897
Lead Opinion
(after stating the facts). Certain of the findings of fact of the circuit court are really findings of law. Thus, the court found that, as matter of law, it was the duty of the clerk to receive ánd file the petition in error and prsecipe. The court found as matter of law that it was the duty of the attorney to supervise the- action of the clerk in filing the.petition and the prsecipe and
Was it the duty of plaintiff to see to it that the clerk issued the summons, or had he the right to rely on the clerk’s doing his duty? Or, to put it in another way, can the clerk excuse his default by saying, “You ought to have anticipated my negligence and provided against it”? We think that the questions mast be answered by a consideration of the provisions of the Ohio Code of Practice and the decisions under it. Section 6713 of the Revised StaLufes of Ohio provides that proceedings to reverse a judgment shall he by petition in error, filed in the court of error; that “thereupon a summons shall issue and be served, or publication mack;, as in tbe commencement of an action, and a service on the attorney of record in the original case shall be sufficient.” Section 67.14 provides that: “The summons mentioned in the last section shall, upon the written praecipe of the plaintiff in error or his attorney, be issued by the clerk of tbe court in which the petition is filed, to the sheriff of any county in which, the defendant in error or his attorney of record is found; when the writ is issued to a foreign county, the sheriff thereof may return it by mail to the clerk and shall be entitled to the same fees as if it had been returnable to the court of common pleas in which such officer resides; and the defendant in error or his attorney, may waive in writing the issue or service of the summons.” Under the title “Procedure in the Courts of Common Pleas and Superior Courts and in Circuit Courts on Appeals,” the specific duties of certain officers are
We have thus reviewed at some length the statutory requirements in Ohio for the beginning of original suits and for the beginning of suits in error, and those which describe the exact duties of the officers. We may take judicial notice of what the actual practice under these statutes is. The language of the statutes, and the actual practice, leave no doubt in our minds that the policy of the state of Ohio from the beginning has been to have process issued and served by a public officer, indifferent between the parties, and not to leave it to the agent of the party plaintiff, as in so many other states. It is the clerk’s duty to issue the process to the sheriff; it is .the sheriff’s duty to serve it, and return it to the clerk; it is the clerk’s duty to receive the return and record it. The whole machinery is put in motion by the praecipe of the.moving party to the action, but after that, the law provides no place for the intervention of the party.
“Was it negligence, as between the two companies, for the one to rely on the other’s compliance with the statute, and its tacit agreement? It seems to us clear that it was not. It does not lie in the mouth of the 'Louisville Company, after consenting that the Cincinnati Company should put its train in a place not dan-goi-ous except through the negligence of the Louisville Company, to say that the Cincinnati Company was wanting in due care in reposing such invited confidence. It is not negligence, ordinarily, for one to act. on the theory that, another will comply with his statutory duty, unless there is some reason for thinking otherwise.*590 Jetter v. Railroad Co., 41* N. Y. 154; Baker v. Pendergast, 32 Ohio St. 494; Railroad Co. v. Schneider, 45 Ohio St. 678, 699, 17 N. E. 321; Stapley v. Railway Co., L. R. 1 Exch. 21. Still less can the charge of contributory negligence be made by one who invited or consented to the action, and thereby impliedly agreed that it should be attended with no danger from him.”
We think the principle of these cases applicable in the cause before us. The railway company here could rely not only on the statutory obligation of defendant to issue the summons, but also on something that very nearly resembled a contract obligation implied in the condition of defendant’s official bond. In such a case, to hold that a failure of the obligee actively to prevent a default by the obli-gor will defeat recovery on the obligation, is to render the latter a worthless protection. With deference to the views of our colleague, Judge HAMMOND, who differs from the majority of court on this point, we do not think that any of the cases relied on by him apply to the one before us. That which, on its face, most nearly resembles this, is Curlewis v. Broad, 1 Hurl. & C. 322. The suit was for damages against a process server whom plaintiff had employed to serve a summons according to the procedure act for failing to indorse the writ as required by the act. There was a plea that the defendant was not instructed to indorse the writ as required by the statute, and that he was not retained to do more than serve the writ, and was not requested to make the indorsement. There was a demurrer to the plea, and joinder therein. The section of the statute relied on enacted that “the person serving the writ of summons shall and he is hereby required within three days at least after such service to endorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of nonappearance to proceed under the act.” The plea was held good, and the plaintiff was giyen leave to reply. There was no formal judgment, but from the remarks of the barons arguendo it is to be inferred that the conclusion was founded on the view that the process server was not a public officer charged with certain statutory duties, but was a mere private agent of the plaintiff’s attorney, to do what he was told to do; that the measure of the server’s duty was his instructions, and not the statutory requirement as to how the writ should be served; that the statute measured the responsibility of the attorney, whose duty it was, through his private agents, selected as he chose, to see'.that the writ was properly served. The case, in effect, holds that the server would be liable if he had been instructed to indorse the writ and did not do so. How this bears upon the case at bar, it is difficult to see. Under the mode of procedure in the case cited it was the plaintiff’s duty, or that of his attorney, to serve the summons; and he might procure the service to be done by any one, —as one of the judges suggests, by a school boy. Under the Ohio statute, the writ must be issued by the clerk, who is not plaintiff’s agent, but a public officer; and it must be served by a sheriff, or one of his general or special deputies. Their duties are fixed by statute, not by private agreement. The case of McRaney v. Coulter, 39 Miss. 390" court="Miss." date_filed="1860-10-15" href="https://app.midpage.ai/document/mcraney-v-coulter-8257631?utm_source=webapp" opinion_id="8257631">39 Miss. 390, is the strongest one for the view of Judge HAMMOND. There the court held it was a wánt of due diligence in an attorney
We come now to the question of damages. Upon this point we are all agreed, and Judge HAMMOND states in his opinion more fully⅛ than it is proposed here to state them the reasons for our conclusion. The defendant deprived the plaintiff of its legal right to contest the question of its liability to another for $2,130 in a court of error. What is that right worth? Really its value depends on the probability of a reversal, and the successful event of a new trial. Ordinarily, on a proceeding in error, the judgment of the court below is presumed to be correct until it is shown otherwise. Can the clerk who negligently prevented the proceeding in error rely on that presumption to escape being mulcted in damages for depriving the plaintiff in error of the privilege and right of meeting and overcoming it? We think not. There is but one case in point, and that only a nisi prius ruling. In Cohen v. Marchant, 1 Disney, 113, the action was against a justice of the peace for failing to date properly the appeal bond, whereby the right of appeal was lost. Judge Storer told the jury that they might measure the damage by the amount of the judgment'. It is a rule in actions for negligence in issuing execution on a judgment, or for negligence in allowing the escape of one whose body is taken in execution, that the amount of injury is prima facie measured by the face of the judgment, and that the burden is on the negligent officer to reduce the recovery by showing the insolvency of the defendant. Carpenter v. Warner, 38 Ohio St. 416. As against a public ofiicer who negligently deprives another of his right to be heard in a suit against him, we think the same rule of evidence should prevail, and that the plaintiff should be entitled to recover all that the negligence of the defendant has caused him to pay unless the officer can show that, even if he had not been negligent, the complaining litigant would have had1 ultimately to pay the same amount. In order to do this, the defendant may be obliged to submit to the court the record in the first case, to decide whether there was reversible error, and also to adduce evidence to show that on a second trial a second verdict of the same or greater amount would have been rendered against the plaintiff. The anomalies will then be presented of having one nisi prius court review the errors of another, and of having one jury decide what conclusion another jury would have reached on a given state of evidence: but these anomalies seem inherent in the nature of the controversy, unless it is to be held either that the damages are merely nominal, or that they are fixed at the amount of the judgment. The first alternative is to be avoided, if possible, because it practically gives the clerk complete immunity from what may he most serious and injurious consequences of his neglect; while the second can hardly bé adopted by a court, because it would seem to be judicial legislation, fixing a penalty for default, and not the assessment of damages according to the reason or analogy of damages in like cases. We are not, how
The judgment of the circuit court is reversed, with instructions to enter judgment on the findings in accordance with this opinion.
Dissenting Opinion
dissents from the views of the court as to contributory negligence, and concurs with the court upon the question of damages.