55 Neb. 742 | Neb. | 1898
This was an action on an abstracter’s bond given by tbe first named defendant pursuant to the provisions of section 65, chapter 73, Compiled Statutes 1897. The abstract in question was furnished to Michael Fleck, who relied on it in purchasing of Joseph Cammenzind certain real estate situated in Douglas county. The abstracter’s certificate, among other things, recited that, “We have examined the records of the district court of Douglas county, Nebraska, and that there are no unsatisfied judgments nor suits pending in said court against Joseph Cammenzind that are liens on said land, prior to the date hereof, as shown by the records of said court.” Relying on this certificate the plaintiff purchased of Fleck the land described in the abstract. The recital of the certificate was false. The land at the time was subject to the lien of a judgment for $144.30 in favor of Patrick and against Cammenzind. This judgment, whicli had been rendered by a justice of the peace and trans-cripted to the district court, plaintiff discharged. He now demands reimbursement.
The defense to the action was that the liability of an abstracter is contractual, and that the principal defendant never had any contract relations with the plaintiff. While the decisions are not in harmony upon the point, it was probably the doctrine of the common law that an abstracter’s liability was only to his employer for negligence or want of skill in the performance of the duties which he had undertaken to discharge, and that he was not ordinarily liable at all to third persons whose action had been influenced by his certificate. (National Savings Bank v. Ward, 100 U. S. 195; Zweigardt v. Birdseye, 57 Mo. App. 462; Kahl v. Love, 37 N. J. Law 5; Schade v. Gehner, 133 Mo. 252, 34 S. W. Rep. 576; Talpey v. Wright, 61 Ark. 275, 32 S. W. Rep. 1072; Mallory v. Ferguson, 50 Kan. 685, 32 Pac. Rep. 410.) And such seems to be the view of the matter taken in Thomas v. Carson, 46 Neb. 765,
The point made by the defendants against the validity of the judgment omitted from the abstract is without merit. The .action was commenced before a justice of the peace against Joseph Gammenzind and another; and while it is true that-the officer’s return does not certify in so many words that the process was served on Joseph Gammenzind, it does state what is equivalent thereto, viz., that service was made on “the within named defendants.” This was sufficient. Besides, it is disclosed by the record that Joseph Gammenzind personally appeared as a defendant in the action.
It is claimed that the plaintiff could not maintain this action without having first exhausted his other remedies. He might, of course, have sued his grantor on the covenants of warranty contained in his deed, and he might, also, have proceeded against Gammenzind after having taken an assignment of the judgment from Patrick; but we know of no rule of law that required him to do so. The plaintiff’s damage resulted from the fault of the abstract company, and consequently its liability to him is a primary one.
Whether the omission of the judgment from the abstract was the fault of the person employed by the abstract company to investigate the title was a question submitted to the jury on proper instructions, and we see no reason to d'oubt the correctness of the conclusion reached by them.
'. To show that the Gammenzind judgment was indexed in the office of the clerk of. the district court on the day the transcript thereof was filed, the plaintiff introduced evidence of the uniform custom of the clerk in regard to such matters. This evidence was properly received to supplement the legal presumption that the clerk faithfully discharged the duties imposed on him by the statute in relation to transcripted judgments. (1 Greenleaf, Evidence sec. 40; Owen v. Baker, 101 Mo. 407.) Mr, Dev-
Affirmed.