11 Mo. App. 400 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This is an action against a sheriff and his sureties, for damages for a false return. The relatrix, Mrs. Kearney, was the owner of a house and lot in St. Louis on which the taxes for the year 1875, amounting to the sum of $18.21, were due and in arrears. On May 29, 1878, the tax collector instituted a suit under what is known as the back-tax law, to enforce the lien of the state for these taxes. A summons was issued in accordance with the requirements of the statute,.against Mrs. Kearney and her husband, was placed in the hands of the defendant, as sheriff, which, on
My first impressions' of this case were that, it was very clear that these relators had no cause of action for more than nominal damages. After examining a number of adjudications bearing upon the questions here involved, I confess I do not feel so clear : I think this .is a case where well-informed judges might possibly'differ in opinion; but
It has been found necessary, in order to prevent confusion and uncertainty in the administration of justice, to establish and adhere to the rule that the return of a sheriff, or other officer whose duty it is to execute the process of a court, imports absolute verity and cannot be averred against or traversed, except in an action against him for a false return. As the law has denied to a person aggrieved or damnified by a false return of a sheriff, every other remedy except an action against the sheriff and his sureties, it has been correspondingly liberal towards persons thus aggrieved, and strict towards the sheriff, in all matters pertaining to this action. The plaintiff’ makes out a prima facie case by showing that the return was false or erroneous, and the burden is cast upon the sheriff of justifying the facts returned, or of excusing his negligence in the premises. So strict is the rule, that, where it appears that the return is technically false, nominal damages go against the sheriff, although it appears that he was guilty of no negligence or actual wrong in the premises. 2 Sedgw. on Dam. (7th ed.) *511, 512, and note b.
Necessarily, all actions of this kind are predicated upon non-feasance or misfeasance by the sheriff, or those for whom he is responsible. A cursory examination of the numerous cases on this subject will show that nearly all of them are grounded on the principle of non-feasance. They are brought by plaintiffs in actions who have lost their debt or damages by reason of the failure of. the sheriff, or his deputies, properly to execute process placed in his hands at the instance of the plaintiff, or to pay over to the plaintiff moneys collected for him. These actions are grounded upon the idea that the sheriff, when he accepts his office, engages with the state to perform, for the benefit of individuals, certain acts, when called upon by,
He is also liable for misfeasance done under color of his office, on the same principle as though he were a private person. • The great body of decisions under this head are those in which he has rendered himself liable as a trespasser by executing void process, by executing process on the wrong party, or on the goods of the wrong party, or otherwise by executing process in an unlawful or oppressive manner.
To this class of cases belong those in -which the sheriff, by making a false return, has put in operation the ordinary machinery of a court of justice against a person who was not amenable to it, whereby damages have accrued to such person without any fault on his part. Thus, if a sheriff falsely return that he has served upon a person notice of a suit to foreclose a mortgage upon the land of such person so that, in the ordinary course of the court, the mortgage is foreclosed, and his equity of redemption barred, he having no knowledge of the proceeding, the sheriff will be liable ¡to him in damages. Davis v. Richmond, 35 Vt. 419. Or, if the sheriff falsety return that a person arrested by him under a capias has been rescued by a third person, whereby such third person, precluded from denying the return, is punished for contempt of court, he may recover damages of the sheriff. Brayser v. McLean, L. R. 6 Priv. Co. App. 398.
While, as before stated, the sheriff will be liable for nominal damages where the return is technically false, although he may have exonerated himself from actual fault, and
Let us apply this principle to the present case. Let us balance the negligence of the plaintiff and defendant, and
We proceed, however, to the examination of questions of law which arise on this record. The sheriff has made a return which was false. This is established by a judgment against him for nominal damages, of which he does not complain. Mrs. Kearney has lost her land in consequence of a proceeding which resulted in a judgment, execution, and sale of it, one of the earliest steps in which was the placing of a writ of summons against her and her husband in the hands of the sheriff, and his returning thereon, “ the within-named defendants cannot be found in the city of St. Louis.” But did this make the sheriff answerable personally for the damages which finally happened to her ? We'think it did not. In discussing this question, we shall leave out of view the fact that it is not shown that-the person complaining had any just defence to the suit which was thus put on foot against her by publication.
We think this question turns on a well-understood principle in the law of damages. A person who has done a wrong is responsible only for those damages which have flowed, as a natural and direct consequence, from the wrongful act
It then seems clear to us that the judicial inquiry which
This principle narrows the whole question in this case down to this: Whether the sheriff, when he returned the writ of summons “ not found,” was bound to foresee that the judge would, notwithstanding the statute, accept his return as conclusive evidence of the fact that the defendants were, in fact, beyond the reach of the ordinary process of the court, and so grant the order of publication. We do not know of any principle on which the sheriff was bound to presume that the judge would do this. And herein lies the distinction between this case and the case of Brayser v. McLean (L. R. 6 Priv. Co. App. 398), which has been pressed upon our attention by the learned counsel for the. plaintiff in this action. In that case the sheriff returned that a third party had been guilty of a rescue of a prisoner which the sheriff had arrested under a writ capais ad satisfaciendum; and thereupon such third person was brought
If we are right in this view, it follows that there could be no recovery of more than nominal damages on the facts of this case, none of which are disputed. It equally follows that there was no error in the rulings of the court complained of, which need not be considered in detail.
The judgment is affirmed.