Boyd v. Desmond

Citations

• 79 Cal. 250
• 21 P. 755
• 1889 Cal. LEXIS 711

Syllabus

<p>Official Negligence—Sheriff — Filing Return of Sale.—In an action on a sheriff’s official bond for damages for negligence in failing to return an order of sale of mortgaged property, whereby plaintiff was prevented from collecting the debt for the deficiency, it is not enough for the defendants to show that the return was found in the clerk’s office without a file-mark, among a bundle of bulky papers, where loose papers were not kept, there being no evidence either in the sheriff’s office or clerk’s office tending to show that a return had been made to or filed in the clerk’s office. If the filing can be proved by parol, the proof must show an actual delivery of the paper to the clerk or one of his deputies for the purpose of filing, and the proof should be clear and positive.</p> <p>Id.—Presumption as to Official Duty.—In such action, the sheriff being charged with a specific act of negligence, there can be no presumption in favor of the sheriff and his sureties that the sheriff had performed his official duty, where such presumption in his favor would necessarily result in a counter-presumption that the clerk had failed to perform his duty as a public officer.</p> <p>Id. —Evidence of Sheriff’s Return. — It is competent, in such action, for the sheriff to prove the order of sale, and the indorsement of a return thereon, as one of the acts necessary to he done in making the return, without first proving' that they had been filed in the clerk’s office, although such order and indorsement are not sufficient to prove the whole ease in favor of the sheriff.</p> <p>Id. — Evidence as to Qualifications of Deputy. — In such action, the fact that the sheriff is charged with official negligence, and that he made the sale and indorsement of return through his deputy, does not raise the question as to the deputy’s general fitness for the office, and it is not competent to prove that he was a competent, prudent, and careful man, especially where it appears that the failure to