State ex rel. Kearney v. Finn

87 Mo. 310 | Mo. | 1885

Black, J.

The relators are husband and wife, and in the right of the wife owned real property, upon which the taxes were unpaid for 1875. The collector brought suit to enforce the lien for the taxes against the property. To the writ of summons the sheriff made return that the defendants to them, relators here, could not be found in St. Louis. Notice, by publication in newspaper, judgment, special execution, and a sale of the land followed. The purchaser recovered possession by an action of ejectment, and the relators bring this suit against the sheriff and his sureties for an alleged false return cn the writ of summons. The tax judgment was for $23.27 and the property sold, at the sheriff ’ s sale, for three hundred and eighty dollars. The relators offered in evidence the sheriff’s deed, and also offered to prove that the property thus taken from them was of the value of four thousand dollars, all of which evidence was excluded ou the ground that the damages resulting from the sale were too remote. Under the directions of the court there was a verdict for one cent damages, to reverse which this writ of error was sued out.

With respect to executions, it is the duty of the officer to use reasonable diligence in searching for property whereon to levy the same. Fisher v. Gordon, 8 Mo. 386; State ex rel., etc., v. Ownby, 49 Mo. 72; Taylor v. Wimer, 30 Mo. 126. He must execute the writ without unreasonable delay. Douglass v. Baker, 9 Mo. 41. So the law sanctions no negligence in the execution of writs of attachment, and on the other hand it makes no unreasonable demands. Reasonable diligence and celerity only is required. Whitney v. Butterfield, 13 Cal. 338 ; Hinman v. Borden, 10 Wend. 367; Tucker v. Bradley, 15 Conn. 46. So, too, it was said in Commonwealth for Ashby v. Gill, 14 B. Mon. 20, with, respect to the service of a writ of summons : “ All that is required from the sheriff in such cases is that he shall, in good faith, make a reasonable effort to execute the process. If he were required to use all possible efforts to execute a summons in one case, he might thereby lose the-opportunity of executing.every other process in his hands. He is to act, in each case, honestly and diligently, but with due regard to his duties to all litigants, and to the-public. It is upon this ..principle that he is authorized, to return' ‘not found,’ if he go to the dwelling of the-party and do not find him there. And these circumstances would excuse the non-execution of the process,, unless it should be made to appear that he had a reasonable opportunity of executing it on some other occasion.”' The non est return of the officer includes the assertion that he has made such efforts to find the defendants as the law requires he should make. The extent of this inquiry to be made by him, as we have seen, depends much upon the circumstances, and in this respect is like-questions of negligence.

Now, the summons in this case was issued on May-29, 1878, and’ was returnable to, and actually returned-to, the following October term .of the court. The bill of exceptions says the relators offered evidence tending to-show that the return was false ; that the relators were,, at the date of the return, and for a number of years prior thereto had been, well-known residents and householders in said city, and were in the city, all of which the sheriff knew, or, by the exercise of proper diligence, might have known. Not a word of opposing testimony is offered. Applying the principles before stated and there was a plain breach of duty, and the return .was false. Not a mitigating circumstance was shown on-trial. This may have been of the ruling as to damages.

But it is urged that relators could not recover substantial damages because the order of publication intervened between the act of the officer, and the sale by which the property was lost to the relators. In short, it-is sought to apply a principle of law which is thus stated in Wharton on Negligence, section 134: “.Another person, moving independently, comes in, and, either negligently or maliciously, so acts as to make my negligence-injurious to a third person. If so, the person so intervening acts as a non-conductor, and insulates my negligence, so that.I cannot be sued for the mischief which, the person so intervening directly produces.” Section 3496, Revised Statutes, provides that: “When, in any of the cases contained in section 3494 (and this is one of them), summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants cannot be found; the-court being first satisfied that process cannot be served,, shall make an order as is required in said section.”

It is under this section the order of publication was’made. It is true, the court must be satisfied that process-cannot be served. No method of thus satisfying the court, is pointed out. It cannot be contended that the law means-that witnesses shall be subpoenaed and heard. The court may, and in many cases ought to, make inquiry aside from the return. But it may also, and rightfully too, be-satisfied from the return itself, as where the writ has-been in the hands of the officer for a considerable length of time, as was the case here. It is the non est return-which constitutes the basis upon which this class of publications are made. It supplies the place of an affidavit-of non-residence. Every officer knows, and must know, that a publication is the natural and orderly result of such a return. It cannot be said that the court acts independently oí the retara; it rather acts in conjunction with the return, without which it could not make-this class of publication. If a new force or power has intervened, of itself sufficient to stand- as the cause of the misfortune, the other must be considered too remote.Ins. Co. v. Tweed, 7 Wall. 52. The act, however, of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence,. will not excuse the first wrongdoer, if such act' could have been foreseen. Lane v. Atlantic Works., 111 Mass. 140. According to the usual and well known course .of business and practice in the court, the order of publication, judgment and sale, were the natural results ■of the false return, though the further order of the court was necessary thereto, but founded thereon. The plain- - tiff should have been permitted to make the proof offered as to substantial damages, and the cause should be tried ■on its merits on both sides, and to that end the judgment will be reversed and the cause remanded.

The fact that relators sued out one writ of error which was dismissed does not preclude them from suing .out another and giving the proper notice.

The judgment is reversed and the cause remanded.

All concur.