McAllister v. C. H. Clement (1888) · DecisionDepot

McAllister v. C. H. Clement

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Feb 25, 1888 No. No. 9874Published

Before: Belcher

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Holding. The court held that a notary public and their sureties are not liable for official misconduct or neglect where the plaintiff has failed to prove that they sustained any actual damages.

Issues

Whether a notary public and their sureties are liable for damages resulting from a defective certificate of acknowledgment when the plaintiff suffered no actual loss.

Disposition. affirmed

Quotations verified verbatim against the opinion

“But it is clear that no action will lie to recover damages if no damages have been sustained.”

“It is urged, however, that the plaintiff was at least entitled to recover nominal damages. But why should he have nominal damages if he suffered no actual damage ?”

Synopsis

Negligence—Liability of Notary Public—Certificate of Acknowledgment to Mortgage—Damage without Injury. —The negligence of a notary public in making his certificate of acknowledgment to a chattel mortgage, by reason of which the lien of the mortgage was lost, will not entitle the mortgagee to recover damages against him, when the property intended to be secured by the mortgage was wholly valueless. Id.—Nominal Damages—Immaterial Error—Appeal.—Where the findings show the plaintiff to be entitled to recover nominal damages only, a judgment rendered in favor of the defendant will not be reversed on appeal. In such a case, the maxim, De minimis non mrat lex, is applicable.

Opinion — Belcher

Belcher, C. C. —This action was brought to recover damages for the alleged official misconduct or neglect of a notary public. The material facts of the case are as follows:—

In 1883 the defendant, C. H. Clement, was a notary [183]public for San Luis Obispo County, and "the other defendants were the sureties on his official bond. On the fourteenth day of April of that year, one W. A. Cook made to the plaintiff his promissory note for six hundred dollars, payable six months after date, with interest, and on the same day, to secure the payment of the note, executed to plaintiff a mortgage upon a crop of wheat, barley, and oats then growing in the county of San Luis Obispo. The mortgage was properly sworn to by mortgagor and mortgagee, and was" acknowledged by the mortgagor before the defendant Clement. The certificate of acknowledgment, which was attached to the mortgage, reads as follows:—

“State of California, county of San Luis Obispo, ss¡

“On this fourteenth day of April, 188—,before me personally appeared W. A. Cook, known to me to be the person whose name is subscribed to the within instrument, and he acknowledged to me that he executed the same. In witness whereof I have hereunto set my hand and affixed my official seal at my office in the county of San Luis Obispo, on the day and year in this certificate "first above written.

[Seal] “C. H. Clement, Notary Public.”

In this condition the mortgage was recorded on the nineteenth day of May, 1883. Before the note became due Cook was adjudged to be an insolvent debtor, and his assignee in insolvency took possession of all his property, including the mortgaged crop. The plaintiff made no effort to foreclose his mortgage or to subject the mortgaged property to the payment of his debt. The note has never been paid, and Cook is insolvent and unable to pay it.

It is alleged in the complaint that the failure to state correctly in the certificate the year when the acknowledgment was taken, and to insert in the body of the certificate “ the name and quality of the officer ” who made it, destroyed the lien of the mortgage as against the as[184]

McAllister v. C. H. Clement

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Synopsis

Opinion — Belcher

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