Brock v. Hopkins

5 Neb. 231 | Neb. | 1876

Lake, Ch. J.

This is a petition in error from Otoe county, and presents but a single question for our decision. It is simply whether a clerk of a district court, who “ negligently and carelessly” takes insufficient security for stay of execution, is liable, at the suit of the judgment creditor, for the damages thereby occasioned.

The learned judge in the court below held, that in such case, the clerk was not liable. This decision was based on the ground that in taking such security he acts judicially; and that judicial officers are not liable for acts negligently or carelessly performed, whereby an injury is occasioned to another person. It is true that in the performance of his duty, under the statute providing for stay of execution, the clerk is required to exercise his judgment to a certain extent. He is to be satisfied that the security which he accepts is such as the statute requires to be given. And doubtless, if he act with caution in what he is called upon to do, and in all respects as a reasonably prudent person would be likely to do in transacting the same business, if it concerned his own interests, this is all that should be required of him. But he should be held to at least that degree of care, in the performance of so important a duty as that of taking bail for stay of execution, where the whole amount of the judgment might be lost to the creditor, through the incompetency or negligence of the clerk, if a less stringent rule were to govern. We are of opinion that it would be carrying the rule of non-liability altogether too far, to hold that a clerk, in the performance of this duty, comes within the class of judicial officers, who are exempt from liability for damages occasioned by their wrongful, negligent, or careless acts.

We hold that the clerk of a court in this state is a ministerial officer merely; and the fact that he is required to take and approve security in certain cases, does not invest him with a judicial character. And the legislature seems to have been very careful, notwithstanding the imposition of these peculiar duties upon clerks of courts, to have it understood that they do not thereby lose their ministerial character, or become absolved from liability for damages occasioned by their official neglect. Section 897, of the code of civil procedure, provides that “The ministerial officer, whose duty it is to take security in any undertaking provided for by this code, shall have the right to require tbe person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer. The talcing of such an affidavit shall not exempt the officer from any liability to which he might be otherwise subject for talcing insufficient securityIt is true that this statute does not mention the cases in which such liability would exist. It is wholly silent on that point. But surely we can conceive of no case wherein it would be proper, except wherein the clerk has willfully, or carelessly and negligently caused the damage. The judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.