Boyd v. Desmond
Before: Works
Synopsis
Official Negligence—Sheriff — Filing Return of Sale.—In an action on a sheriff’s official bond for damages for negligence in failing to return an order of sale of mortgaged property, whereby plaintiff was prevented from collecting the debt for the deficiency, it is not enough for the defendants to show that the return was found in the clerk’s office without a file-mark, among a bundle of bulky papers, where loose papers were not kept, there being no evidence either in the sheriff’s office or clerk’s office tending to show that a return had been made to or filed in the clerk’s office. If the filing can be proved by parol, the proof must show an actual delivery of the paper to the clerk or one of his deputies for the purpose of filing, and the proof should be clear and positive.
Id.—Presumption as to Official Duty.—In such action, the sheriff being charged with a specific act of negligence, there can be no presumption in favor of the sheriff and his sureties that the sheriff had performed his official duty, where such presumption in his favor would necessarily result in a counter-presumption that the clerk had failed to perform his duty as a public officer.
Id. —Evidence of Sheriff’s Return. — It is competent, in such action, for the sheriff to prove the order of sale, and the indorsement of a return thereon, as one of the acts necessary to he done in making the return, without first proving' that they had been filed in the clerk’s office, although such order and indorsement are not sufficient to prove the whole ease in favor of the sheriff.
Id. — Evidence as to Qualifications of Deputy. — In such action, the fact that the sheriff is charged with official negligence, and that he made the sale and indorsement of return through his deputy, does not raise the question as to the deputy’s general fitness for the office, and it is not competent to prove that he was a competent, prudent, and careful man, especially where it appears that the failure to deliver the return to the clerk for filing was owing to the neglect of the sheriff’s book-keeper.
Id. — Measure of Damages — Penalty — Pleading.—The measure of damages in such action is the actual loss incurred by the plaintiff, if there is no prayer for recovery of the penalty imposed by statute upon the sheriff for failure to make a return.
Id. — Proof of Damage — Appeal — Prejudicial Error. — When there is evidence in such action tending to show that the mortgagor had property out of which a judgment for deficiency could have been made prior to his death, and that only part thereof could now be collected out of his estate, without fault or laches of the plaintiff in not obtaining a judgment which was entitled to priority of payment, owing to the failure of the sheriff to return the order of sale, there is sufficient proof of actual damage to prevent affirmance of an erroneous order refusing a new trial, upon the ground that the plaintiff could not have been damaged by the failure of the sheriff to prove a return of the writ.
Works, J. This is an action on a sheriff’s bond for damages for a failure to return an order of sale, by reason of which, it is alleged, the plaintiff failed to procure • the entry of a deficiency judgment, and thereby lost his debt. There was a trial by jury and verdict for the defendants. The plaintiff moved for a new trial, which was denied, and from this order he appeals.
The principal controversy in the case, in the court below and in this court, was and is, whether the evidence is sufficient to show a delivery by the sheriff of the order of sale with his return thereon to the clerk for filing.
The question as to the weight of the evidence relating to this question is discussed in the briefs of counsel, but we do not regard the truth or falsity of the testimony of the defendants’ witnesses tending to show such delivery as of any importance. The undisputed evidence shows ■ that there was nothing on any of the registers kept by the sheriff or the clerk showing, or tending to show, that the paper had ever been returned to or filed in the clerk’s office. There is no direct evidence that it was ever delivered to the clerk for filing. The bill of sale with the sheriff’s return upon it was produced, and it was shown that a witness who made search, at the instance of the sheriff, found the paper in an out of the way place in the clerk’s office. This finding was within a few days of the trial, and after diligent search made by the deputies in the clerk’s office. The paper had been missing for several years; the papers in the clerk’s office had been removed in the mean time from one building to another, and all of the papers carefully examined, compared with the register, and filings indorsed upon papers where such filings had been omitted, and this particular paper was not discovered. The place where the paper was found at the last moment was used for filing large and bulky papers, such as rolls of evidence, and not for small or loose papers. There was evidence tending to show that this drawer, or box, had [254]been searched frequently for other papers, and that no loose papers were kept or found therein. The bill of sale, when found, had no filerinark upon it.
Laying aside the extreme improbability of this paper having found its way to the clerk’s office in the usual manner, and in the regular course of official business, and conceding the evidence of the defendant's in respect to the matter to be reliable and trustworthy, it is clear to our minds that such evidence was wholly insufficient to show that the paper had been returned to the clerk’s office in the manner required by law. There was not a single entry or indorsement in either of the offices tending to show snclr return. The whole of the defendants’ case, or this branch of it, rests upon the evidence that the paper was found in the clerk’s office. It is contended by the respondents that it was not necessary to show the filing by the written indorsement of the clerk on the paper, but that the fact might be proved by parol. This may be conceded for the purposes of this case, although we do not wish to be understood as so holding. But if the filing can be proved by parol, the proof must show an actual delivery of the paper to the clerk or one of his deputies, and the proof should be clear and positive. It is not enough to show the paper in the office of the clerk. It must be delivered to him for the purpose of filing.
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