Swan v. City of Bridgeport

Hall, J. Section 21 of its charter renders the city of Bridgeport directly liable for the defaults of its sheriffs in their offices and imposes upon them, within certain territorial limits, similar duties to those which are by law imposed upon sheriffs generally. Among the duties which a sheriff owes by law to plaintiffs in civil actions, is that of executing “with reasonable diligence according to its terms, all lawful civil process . . . duly delivered to him for service within his jurisdiction.” Mechem on Public Officers, § 744. Section 1992 of our General Statues provides that “ each sheriff shall receive all process directed to him when tendered, and execute it, and make return thereof,” etc. The facts of record show a default in office of city sheriff Thompson in negligently permitting Klaus, whom he had arrested under the civil process placed in lfis hands by the plamtiffs, to escape, and in neglecting to return the process to the court to which it was returnable. Upon this appeal we are called upon to consider, (1) what the rule for damages is for such breach of duty of the city sheriff; and ( 2 ) whether under such rule, upon the facts found by the trial court, the plaintiffs could he entitled to a judgment for the amount due on the $240 forged note. The language of the section of our statute, above cited, [150] is: “ If any sheriff shall not duly execute and return the process, or shall mate a false or illegal return thereof, he shall be liable to pay all damages ” to the party aggrieved. The law is well established that for such default in failing to execute the mandates of mesne process, the officer becomes liable to the injured party to the amount of the damage actually sustained. Mechem on Public Officers, §§ 759, 764; 2 Sedgwick on Damages (8th ed.), § 544; 1 Swift’s Dig. s. p. 542. The amount of the debt is not necessarily the measure of such damages. It is the actual loss which the aggrieved party has suffered by reason of the officer’s default. Clark v. Smith, 9 Conn. 379, 10 id. 1; Palmer v. Gallup, 16 id. 555; Bank of Hartford County v. Waterman, 26 id. 324. The acts themselves, of such defaulting officer, do not constitute the injury for which the law gives the plaintiffs reparation, but the damaging consequences of such acts. The injurious consequence is the interference with the plaintiffs’ right to collect their debt by legal process. To prove Ms damage, at least beyond a nominal sum, for a negligent escape or a failure to attach on mesne process, the plaintiff is ordinarily required to proceed and establish his debt by judgment; since judgment may be satisfied notwithstanding the failure to attach, or the defendant who has been permitted to escape may be produced M court to respond to final judgment; in either of wlfich cases the plamtiff would have suffered no actual loss from the acts of the delinquent officer. 1 Swift’s Dig. s. p. 543; Bank of Hartford, County v. Waterman, supra. But the plamtiff having thus established his debt and his Mability to collect it by legal process, has proved, prima facie, a liability of the defaulting officer to the extent of the debt thus established; and the burden thereupon rests upon the defendant to prove that the actual loss of the plaintiff was less than the amount of such debt. 2 Sedgwick on Damages (8th ed.), § 545 et seq.; Mechem on Public Officers, § 759; State ex rel. Shirk v. Mullen, 50 Ind. 598; Hootman v. Shriner, 15 Ohio St. 43; Brooks v. Hoyt, 6 Pick. 468. In the present case it was impossible for the plamtiffs to [151] prove their debt in their action against Klaus. They were prevented from doing so by the escape of Klaus beyond the jurisdiction of the court, and the failure of the officer to return the complaint to court. They are, however, required in this action to prove the judgment which they could have obtained in the action against Klaus, had the process been returned. This accords with the claim of defendant’s counsel in his brief, that “ the plaintiffs, in order to recover in this action, were bound to show, not only that said city sheriff Thompson neglected to attach the body of Klaus and to return said writ to court, but also that if said writ had been returned the plaintiffs would have recovered damages upon it.” But the defendant insists that the plaintiffs could not have recovered in their action against Klaus, had the complaint in that suit been returned. The cause of action described in that complaint, say defendant’s counsel, was the obtaining of a $240 loan from the plaintiff, by false representations, and the facts show that no such cause of action existed; nor, says the defendant, can the plaintiffs avail themselves in this action of any right which they might have had to amend that complaint, had it been returned to court, since the defendant can only be held liable for the failure of the officer to serve the writ placed in his hands, and not a writ describing a different cause of action; and since the complaint in the present action counts solely “ upon the neglect of the officer to serve and return the writ as it was placed in his hands.” This argument of the defendant is, in our judgment, invalid. The suit against Klaus was not to recover the $80 which the plaintiffs had loaned him, together with the sums they had advanced on the Gray and Hockheimer notes. The gist of that action was the fraud of Klaus in indorsing and delivering to the plaintiffs a forged note in satisfaction, by agreement of the parties, of a valid claim of $240 which the plaintiffs held against Klaus, and which was evidenced by the note for that amount set forth in the complaint and indorsed by Klaus. It was immaterial whether that valid [152] claim was for money loaned, or was a sum due upon notes which. Klaus had made or indorsed. The averment that Klaus had obtained a loan of the plaintiffs, was a matter of inducement which need not he stated with particularity nor strictly proved. 1 Chitty on Pleading (16th Amer. ed.), 296; 1 Swift’s Dig., s. p. 604; Bliss on Code Pleading,- § 311. Under the allegations of that complaint, proof of the indorsement and delivery to plaintiffs, for a valuable consideration, by Klaus, of the note which he knew to be forged, entitled plaintiffs to a judgment for the amount due by the terms of the note. But we think that if the allegation that Klaus obtained a loan of the plaintiffs, be regarded as a material one, the facts show no fatal variance. The transaction was in effect the same as if the plaintiffs had loaned Klaus $240 upon the forged note, and he had thereupon paid the $30 which he owed them, and taken up the two notes upon which he was liable. If without taking that course the parties themselves preferred to treat the notes as money, and the new arrangement as a loan, they were permitted to do so. We think the transaction may be treated as such an agreement. The finding discloses no facts which would have rendered a judgment against Klaus valueless, or which would necessarily have reduced the plaintiffs’ loss below the amount due upon the forged note. From the record it does not appear that defendant offered any evidence for that purpose. Apparently the defendant relied upon its claim that it devolved upon the plaintiffs to prove that the judgment would not have been collectible. The trial court found the plaintiffs’ damage to have been the amount due upon the forged note; that at the time the writ was served Klaus had no attachable property so far as was known to the plaintiffs, their attorney, or the officer; that “before then he had some money, but how much it was, or what became of it, did not appear in evidence.” There is no finding that Klaus was insolvent. As in our opinion the plaintiffs could have recovered judgment in their action against Klaus, without amending their complaint-, it is unnecessary for us to determine whether [153] they could- have recovered in the present action had such amendment been required. There is no error. In this opinion the other judges concurred.