Gibbens v. Pickett

Taylor, J.: T. D. Gibbens, the appellant, as assignee of a mortgage made by J. L. Pickett, the appellee, to A. EL Hudson and L. Bonnell, filed his bill on the 2d of April, 1887, in the Circuit Court of Duval county, [148] against Pickett, the mortgagor, to foreclose the same.. Subpoena in chancery to the defendant, Pickett, was. issued on the day the bill was filed, returnable to rule-day in May, 1887, and the same was filed in the clerk’s, office on April 15th, 1887, with the following return of service endorsed thereon: “Received this subpoena April 2, 1887, and served the same April 9, 1887, by delivering a true copy thereof, in the county of Duval, to the within named Joseph L. Pickett, and at the-same time exhibiting to him this original writ. E. J. Murphy, deputy sheriff.” The defendant did not appear, demur, plead, or answer, and on the rule day, June 6th, 1887, at complainant’s request decree pro confesso was entered by the clerk in the proper order book. On the ex parte application of the complainant, an order was made June 18th, 1887, referring the-cause to a special master to take testimony and report the amount due on the mortgage. Testimony was-taken before the master ex parte the complainant,, and the master made his report, finding $128.24, to be the amount due for principal and interest on the mortgage and for attorney’s fees for the foreclosure thereof. On the 27th of August, 1887, final decree of foreclosure was rendered, in which the same special master who took the testimony was authorized as such to sell the mortgaged property. On the 5th of September, 1887, the defendant Pickett by his counsel served the complainant’s solicitors with notice that on the 6th of September, 1887, he would' move the court to set aside and vacate the decree pro coiifesso and final decree, and for leave to plead to the bill on the following grounds: [149] 1st. The subpoena in said cause was not served, or' returned as served, upon defendant. 2nd. There was no ■decree pro confesso entered in said cause by the clerk. '3rd. No proper proof was made of the alleged cause of .action and amount claimed before the master. 4th. Defendant has a defense upon the merits to said cause, •as shown by affidavit filed. This motion was accompanied by a petition and affidavit of the defendant for the vacation of said decree pro confesso and final decree, stating that said subpoena had never been served upon him, and that he had no knowledge of the exist•ence of the suit until- he saw the mortgaged property advertised in a newspaper for sale. That he did not owe the amount decreed, and had credits to which he was entitled that had not been allowed. At the hearing of this motion the following order was made on September 6th, 1887: “This cause came on to be heard on within petition, and having been argued by counsel, it is ordered that the decree pro confesso and final decree in this cause be vacated and set aside, and that ■defendant do plead, answer or demur to the bill in this ■cause within ten days from this date. Jas. M. Baker, ■Judge.” Prom this order the complainant took his .appeal to this court. It is asserted in the appellant’s petition of appeal, and reiterated in his briefs, that the ground upon which the court below made the order appealed from was, that the return of service of the subpoena in the cause, ••as made by the deputy sheriff in Ids own name, instead of in the name of his principal, by himself as «deputy, was illegal, and was no evidence that the de [150] fendant had been duly served with process in the cause.. We have no doubt that the return of service as made upon this subpoena was a nullity, and cannot be relied upon as evidence that the court acquired jurisdiction over the person of the defendant to whom said subpoena was directed. While our statute (sec. 16, p. 939 McC’s Dig., Sec. 1247 Rev. Stat.) in express terms authorizes sheriffs to appoint deputies to act under them who-shall have the same power as the sheriffs appointing, and for whose neglect and default in the execution of their office the sheriff shall be responsible, still there-is nothing more in this statute than a declaration of that which was common law on the subject from time-immemorial in England and in this country, and we can see nothing in the statute that creates in a “ deputy sheriff” any independent distinctive official power or authority except such as he derives as deputy from and through his principal. The term “ deputy” necessarily carries with it the idea that he has a principal,, and that he can not act independently in his own name- and stead, but performs all official acts of this kind in the name and stead of such principal for whom, as; deputy, he is alone authorized to act. If he undertakes to act in his own name and on his own authority,, then he no longer acts as deputy, but as an independent official recognizing no official superior. When he acts as deputy for, and in the name and stead of, his; principal, then the law recognizes his acts as being the-acts of Ms principal, just as though the principal had performed them in person. And it is only when the act-of the deputy can be thus recognized as the act of the-. [151] principal, that it can be recognized at all. When he-ceases to act for the principal, as the principal's deputy, he at once becomes stripped of all official authority. The acts that he performs are official acts that devolve by law upon his principal; and when he performs them, and, as in the case at bar, gives expression to his performance of them in the shape of a return of the service of process, he must make it appear therein that it is the act of Ms principal by or through himself as deputy, otherwise the action can not be recognized as official. Jordan vs. Terry, 33 Texas, 680; Arnold vs. Scott, 39 Tex., 378; Talbott vs. Hooser, 12 Bush (Ky.), 108; 3 Kent’s Com., 458; Joyce vs. Joyce, 5 Cal., 449; Executor vs. Howard, 23 Cal., 402; Ryan vs. Eads, 1 Breese (Ill.), 217; Ditch vs. Edwards, 1 Scam., 127; McGee vs. Eastis, 3 Stewart (Ala.), 307; McMurphy vs. Campbell, 1 Hayw. (N.C.), 181; Pond vs. Vanderveer, 17 Ala., 426. In this case the return off service on the subpoena in chancery is signed, ‘ ‘ E. J.. Murphy, Deputy Sheriff.” It does not show for the sheriff of what county even', he was acting as deputy; nor is there anything to show that the subpoena ever went into the hands of his principal to be served. ' The return of service is a nullity,, and was no evidence to the court that it had jurisdiction over the person of the defendant alleged to have-been served, and, consequently, no valid decree, either' pro confesso or final, could have been predicated. thereon. The order appealed from is affirmed.