Raker v. Bucher

De Haven, J. The defendant as sheriff sold certain real property owned by plaintiff under an execution issued upon a judgment recovered against him. The complaint in this action, which is verified, alleges that this sale was made by defendant without giving the notice required by section 692 of the Code of Civil Procedure, and the plaintiff demands a judgment against the defendant for the statutory penalty of five hundred dollars given by section 693 of the Code of Civil Procedure against an officer for selling property without legal notice, and, also, for the actual damages alleged to have been sustained by him by reason of such wrongful sale. The defendant answered, and the action was-tried without a jury, the court finding in substance that-the defendant gave the notice required by law before making the sale complained of, and judgment was thereupon entered in favor of defendant. Plaintiff appeals. • 1. The court did not err in denying the motion of plaintiff for judgment upon the pleadings. The answer was not evasive, as claimed by plaintiff, it being very evident that the word “when,” used in one of the denials relating to the posting of the notices, is a clerical error, the context showing that “where” was the word intended, and with this correction the extremely technical objection to the sufficiency of the answer loses all of its force. 2. The point most strongly urged by the plaintiff for a reversal of the judgment is the insufficiency of the [216] evidence to justify the finding of the court to the effect that notices of sale were duly posted in the township where the property is situated, and in the township where it was sold, for the length of time required by law. The only evidence offered by plaintiff for the purpose of showing that such notices were not posted consisted of the testimony of himself and another witness as to verbal admissions made to them by defendant to the effect that he knew that the notices were not posted, and also the testimoñy of one Merryfield, to whom defendant sent notices of the sale for posting in the township where the property sold is situated. This witness testified that he thought he received the notices for posting on January 27, 1890, only thirteen days before the sale, but he was not questioned in relation to the grounds of his belief, and he testified to no circumstance enabling him to retain any fixed or definite recollection of the exact date when he received the notices, nor did he profess to be certain as to such date. This testimony was given about seventeen months after the event and, relating as it did to a matter and date which the witness was not shown to have any particular reason to recollect with entire accuracy, was entitled to but little weight in passing upon the question when the notices were posted. The court below evidently did not regard it as satisfactory, and we need not further consider it. The only evidence offered by defendant was the writ of execution and his official return thereon, which upon its face showed a sale of plaintiff's property after notice given in the manner and for the length of time required by section 692 of the Code of Civil Procedure. The precise question thus presented is as to the effect of this return as evidence, and whether the court was justified in finding the facts to be as stated therein, in the face of the evidence of plaintiff in relation to the contrary admissions made by defendant. In an action against a sheriff for a false return, the return is prima facie evidence in favor of the sheriff. (2 Freeman on Executions, sec. 366.) In the section [217] just cited Mr. Freeman says: “The better rule is that an action for a false return is not the exclusive remedy when an officer has been guilty of a breach of duty. He may be proceeded against in any other form of action in which such breach of duty is alleged as a ground for damages or for relief; and while his return may be received as evidence in his favor, the plaintiff is at liberty to controvert it if he can.” (See also to the same effect, Whitehead v. Keyes, 3 Allen, 495; 81 Am. Dec, 672; Barrett v. Copeland, 18 Vt. 67; 44 Am. Dec. 362.) This is an action against the defendant for a breach of official duty, and his official return, showing the manner in which he performed his duty in the manner complained of, is only prima facie evidence in his favor; and as the truth of the return is the real question in issue in an action like this, only slight evidence aliunde is required to overcome the prima facie effect which the law attaches to the return of the officer, and when, as in this case, it is not disputed that the defendant sheriff has himself admitted the falsity of the return, a finding that its recitals are true, based upon no other evidence than the return itself, cannot be sustained. The defendant was called upon, in order to rebut the testimony of plaintiff concerning these admissions, to offer some evidence either in explanation or denial of the admissions, or some independent proof that the notices were posted in the manner stated in the return. Judgment and order reversed. Fitzgerald, J., and McFarland, J., concurred. A petition for a hearing in Bank having been filed, the following opinion was rendered thereon on the 5th of December, 1893: