Penley v. . Rader

Pee CueiaM. This action was instituted by tbe plaintiffs to recover of tbe defendants, tbe sheriff and bis bondsman, tbe forfeiture of $500.00 provided in C. S., 3936, for tbe making of a false return by tbe sheriff, and for other damages accruing to them by reason of such false return. Tbe plaintiffs allege that their real property, worth $3,500, was sold at a tax foreclosure sale for $260.00, and that they bad no notice thereof, and bad they bad such notice they would have been able, ready, and willing to make tbe payment of tbe taxes due and thereby have prevented such tax sale, and tbe plaintiffs further allege that tbe return of the defendant sheriff, upon tbe summons, issued in tbe case wherein tbe sale of their land was ordered, to tbe effect that said summons bad been served upon tbe defendants therein, O. W. Penley and bis wife, Laura Penley, by delivering a copy of tbe summons and of the complaint to each of them, was a false return, for that no such service was ever made upon either C. W. Penley or bis wife, Laura Penley, and that as a result of this false return their lands have been lost to them and that they have been damaged thereby in tbe sum of $3,500. Tbe defendants deny that tbe return made upon tbe summons in tbe tax foreclosure action, wherein tbe plaintiffs in this case were defendants, was false, and allege that service in said case was made in accord with tbe return on tbe summons, namely, by delivering copies of tbe summons and of tbe complaint to each of tbe defendants (plaintiffs in this action). Tbe male plaintiff, C. W. Penley, testified that no copy of tbe summons and no copy of tbe complaint was delivered to him. Tbe feme plaintiff, Laura Penley, testified that no such copies were delivered to her. Neither testified as to whether such copies were delivered to tbe other. Tbe evidence shows that at tbe time tbe return was made tbe plaintiffs were living in different counties, Catawba and Caldwell, respectively. There was no corroborative testimony or other evidence as to there being no service of summons and complaint upon tbe defendants in tbe tax foreclosure action. “When notice issues to tbe sheriff, bis return thereon that tbe same has been executed is sufficient evidence of its service.” C. S., 921. It has been uniformly held by this court that a return upon a summons or other process by tbe sheriff, regular in form, cannot be successfully contradicted by tbe uncorroborated testimony of tbe defendant, or party served. “The sheriff’s return imports tbe truth. It is made under oath *704 and cannot be overthrown or shown to be false by the affidavit, merely, of the person upon whom the service is alleged to have been made.” Burlingham v. Canady, 156 N. C., 177. While a person injured thereby may maintain an action for damages growing out of a false return made by a sheriff or other officer, there is a presumption that an officer’s return states the truth, and to rebut this presumption the evidence in contradic-diction thereof must be more than the testimony of one witness. Commissioners v. Spencer, 174 N. C., 36. In the absence of any testimony or other evidence to corroborate the plaintiffs’ testimony that they were never served in the tax foreclosure action, we think his Honor properly granted the motion for judgment as of nonsuit at the close of the evidence. It was admitted by the plaintiffs that the action in so far as it relates to the forfeiture of $500.00 mentioned in the statute was barred by the statute of limitations. Affirmed.