Bank of Orland v. Stanton

California Supreme Court Feb 25, 1902 No. Sac. No. 894.Published

Before: Cooper

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Holding. The court held that the plaintiff failed to state a cause of action for damages resulting from a sheriff's false return of service because the plaintiff suffered no legal injury, as the party not served had a valid defense to the underlying foreclosure action.

Issues

Whether a plaintiff can recover damages from a sheriff for a false return of service when the party not served possessed a valid defense to the underlying action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If this is true, plaintiff was not injured by the false return of service of summons.”

“The plaintiff comes here asking for damages for a failure to serve a summons, and by his complaint shows that the court has, in an action in which it was defendant, found that the party upon whom the summons was not served had a good and valid defense”

Synopsis

Action fob False Betuen by Sheriff—Service of Summons in Foreclosure Suit to Set Decree Aside—Defense—Adjudication— Pleading.—A complaint against a sheriff and the sureties on his official bond to recover the value of a homestead lost by a false return of the service of summons upon the wife, in a foreclosure suit against a husband and wife, does not state a cause of action if it does not allege that the wife did not have a defense to the foreclosure suit, but shows upon its face that in a subsequent suit by the wife to set aside the decree and sale thereunder it was adjudged against the plaintiff that the wife had a complete defense to the foreclosure suit as to her homestead rights.

Id.—Judgment Setting Decree Aside—Presumption—Conclusiveness. . —Where it appears that findings were waived in the action to set aside the foreclosure decree and sale, and that the judgment in favor of the wife therein was final and was not appealed from, it must be presumed correct, and is conclusive in the action for the false return, upon the question whether the wife had a defense to the foreclosure .suit.

COOPER, C.

The court below sustained a demurrer to • plaintiff’s amended complaint, and judgment was entered for defendants. This appeal is from the judgment, on the judgment-roll, for the purpose of reviewing the order sustaining the demurrer. The complaint seeks to obtain judgment against defendant, as sheriff, and the other defendants, who are' the sureties on his official bond, for alleged damages caused by neglect in the service of a summons, and for making a false return as to such service.

The complaint alleges, in substance, that on the twenty-first day of April, 1896, this plaintiff commenced an action in the superior court of Glenn County against T. H. Dodson and Filen M. Dodson, his wife, to foreclose a mortgage upon certain lands therein described, given as security for a note of two thousand dollars, executed to plaintiff by said T. H. Dodson ; that a summons was duly issued in said foreclosure proceedings, directed to both Dodson and wife, and given to defendant Stanton, as sheriff, to be served; that the defendant Stanton, as sheriff, filed his return, showing that he had duly served the said summons on Dodson and wife on the seventeenth day of April,' 1896; that no appearance having been made by either Dodson or his wife, plaintiff had their default entered on May 4, 1896, and afterwards procured a decree of foreclosure in due form against both of them; that, under this decree, and an order of sale issued thereon, the premises described in said mortgage were, by a commissioner duly appointed, sold to plaintiff for $2,700 on the tenth day of June, 1896, and the judgment satisfied to that extent; that thereafter a commissioner’s deed was duly issued to plaintiff;

[595]

that the return of the defendant Stanton, that he had served Ellen M. Dodson in the foreclosure suit, was false, and that he did not serve any summons upon her in said cause; that plaintiff had no knowledge that said summons had not been served until after April 18, 1898, but at all times believed that it had been served as stated in said return.

On January 20, 1900, the said Ellen M. Dodson commenced an action against plaintiff in the superior court of Glenn County to set aside the judgment and decree of foreclosure previously entered against her, and the commissioner’s deed to plaintiff, upon the ground that she had never been served with summons in said action. In her complaint she alleged that at the time of the execution of the mortgage, and at all times thereafter, she and her husband had a homestead, duly declared and recorded upon a part of the lands described in the foreclosure proceedings; that the mortgage executed to plaintiff was wholly without consideration on her part; that she was never served with any summons in the foreclosure proceedings, and the return of the sheriff as to service upon her was, and is, false, and that she was never served with any summons in said action; that she did not know of said foreclosure proceedings, of the sale thereunder, nor of the false return on the said summons until the twelfth day of March, 1897; that she had a good defense to the said foreclosure proceedings as to the homstead, in this, that the mortgage was executed by her without any consideration.

Bank of Orland v. Stanton

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Synopsis

COOPER, C.

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