Newhall v. Provost

A sheriff has no right, after making a return, to amend so as to affect rights which have already vested.

Appeal from the District Court of the Fourth Judicial District. The plaintiffs filed their bill of foreclosure of a mortgage made by defendants to F. W. Page, and by him assigned to plaintiffs, May 3d, 1855. The defendants admit the execution of the note and mortgage, but set up in their answer that they have been garnisheed in two several suits of Schloss et al. v. Page Bacon & Co.; and Goldstein et al. v. Page, Bacon & Co. Schloss and others, and Goldstein and others, intervene, and aver that their writs of attachment were served on the defendants on the same day and at an earlier hour than the assignment of the note and mortgage to plaintiffs by F. W. Page, and that they have obtained judgment in their several suits. The cause was referred by consent to a referee to hear the same and report a judgment. The referee finds upon the evidence that the attachments of the intervenors were served on defendants between the hours of 10 and 11 A. m., and that the assignment by Page to plaintiffs was made at 2 p. m. of the same day. On the trial before the referee, the plaintiffs objected to the introduction of the sheriff’s returns on the attachment as res inter alios acta, and for further cause that the returns had been amended by an order of the Superior Court, in which the actions of the intervenors were brought, after notice to all parties; which objections were overruled by the referee. The plaintiff then offered to read in evidence the affidavits of the sheriff on an application in the several suits of the intervenors, upon which the returns were amended by the Court, and to show the contradictions in the affidavits; and also to show by the defendant Provost and others, that the attachment was not served on him till 4 p. m. on May 3d. The referee excluded the affidavits and evidence, on the ground that it tended to impeach the return of the sheriff; to which ruling plaintiffs excepted The referee reported a decree of foreclosure and sale, and that the attaching creditors of Page, Bacon & Co., intervenors in this suit, be paid out of the proceeds of sale, and have execution against defendants for any deficiency of the amount due on the mortgage, and that the plaintiffs take nothing by their bill and pay the costs. Plaintiffs moved for a new trial. Overruled, and decree entered according to report. Plaintiffs appealed.