Kemp v. Porter

COLLIER, C- J. It is objected by the defendant, that the permission of the circuit court to amend his return, is not a final judgment or decree, which can be reviewed on error. The amendment certainly settles no question definitive of the rights of either party. ■ It will not bar the proceeding which the plaintiffs have instituted for the failure of the sheriff to make the money on their execution. The return of a sheriff in such case, is never regarded as conclusive evidence in his favor, but may be falsified by proof. True, in the present case, the indorsement of a levy on the execution, without showing how the property had been disposed of, would subject the sheriff to liability, and the perfection of the return cannot so operate as to discharge him. The only effect will be to require the plaintiffs, instead of showing that the defendant in execution had property from which it could have been satisfied, by the mere production of the sheriff’s indorsement, to adduce extrinsic evidence to contradict and disprove its truth. In this view, the amendment by leave of the court, is certainly not an order which determines finally whether the plain 174 tiffs are entitled to recover, or the sheriff is absolved — the circuit court merely permitted that to be done, which it was informed could and should have been done previously. We need not consider whether its decision was correct or not; but we will remark, that our courts have always been very liberal in permitting sheriffs to amend their returns of process according to the truth of the case — that officer is regarded as pledged by his official oath, to the performance of his duties; and hence no additional oath is required to satisfy the court, that what he does officially, is correctly done. If the amendment in the present casé has been improperly permitted, and the plaintiffs are prejudiced, they have an adequate remedy by mandamus; but the writ of error cannot be entertained, and is consequently dismissed.