43 Minn. 459 | Minn. | 1890
This action grew out of that of Crosby v. Farmer, 89 Minn. 305, (40 N. W. Rep. 71,) in which the plaintiff here was the defendant, and Oliver Crosby the plaintiff, and S. P. Crosby his attorney, and the judgment in which was set aside as void because there was no service of the summons upon the defendant. The allegations of the complaint are that in this former action the present defendants fraudulently and maliciously procured an officer to make a false return of personal service of the summons, and that, knowing such return to be false, they caused judgment on default to be entered against the present plaintiff, execution to be issued, and his personal property to be levied on and taken thereon. When the plaintiff rested, the court dismissed the action as to both defendants. An examination of the evidence satisfies us that the plaintiff entirely failed to prove any malice, fraud, or bad faith against either of the defendants. Indeed, his counsel here admits this to be the fact aB to all proceedings up to and including the entry of judgment. The only' charge of malice or bad faith which he now makes against the defendants is the issuing of execution after notice of the fact that the return of service of the summons was false, and causing plaintiff’s property to be levied on after the judgment had been set aside. It appears that the execution was taken out and transmitted to the sheriff of Steele county, with instructions to collect, two days after the defendant (plaintiff here) had served notice of motion to have the judgment set aside. But the plaintiff and his attorney (defendants here) were not bound to accept as true the ex parte affidavits on which this motion was made. The sufficiency of the service of the summons depended upon the question whether the legal residence of Farmer was in Owatonna, where his family was living, or in St. Paul, where he boarded and spent most of his time, and where he was carrying on business. The judgment still remained apparently in full force and regular on its face, with the return of an officer
His codefendant, Oliver Crosby, however, who was plaintiff in the other action, occupies a different relation to the matter. Where a creditor causes an execution to issue upon a void judgment, he is liable for the damages arising from the acts of the officer in obedience to the writ, Gunz v. Heffner, 33 Minn. 215, (32 N. W. Rep. 386.) In this instance, although the judgment was not vacated until March 20th, yet it was jurisdietionally void ab initio; and, moreover, the levy was not in fact made until April 3d. While the fact that the writ was regular on its face would protect the officer, and while the attorney who issued it at the direction of his client, in good faith, would not be liable, and while, if a judgment is merely erroneous, and hence valid until reversed, it might protect even the judgment creditor for acts done under it before reversal, (see Peck v. McLean, 36 Minn. 228, 30 N. W. Rep. 759,) and even conceding that the judgment in this case would have protected Oliver Crosby for any thing done under it until it was formally vacated, yet, having set the
Upon the evidence, the plaintiff only made, a case for nominal damages; but, as this would have carried costs, it was error to dismiss. Potter v. Mellen, 36 Minn. 122, (30 N. W. Rep. 438.) In. Harris v. Kerr, 37 Minn. 537, (35 N. W. Rep. 379,) if defendant had been allowed nominal damages by way of offset or counterclaim, it would not have affected the question of costs.
Order affirmed as to S. P. Crosby, and reversed as to Oliver Crosby.
Note. A motion for a reargument of this case was denied June 19, 1890.