Brock v. Hopkins. When an individual sustains an injury by the misfeasance or non-feasance of a public officer who acts or omits to act, contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case. A. S. Cole, for defendant in error. The position assumed by the defendant in error in this case is that a clerk of the court when called upon to act under that section of the statute just cited, ceases for the time to act in his usual ministerial capacity, and acts in a quasi judicial one. S. &. R. on Negligence, Sec. 156. The act requires a showing to be made to the satisfaction of the clerk, and this involves the production of evidence of sone kind which the record in this case shows was produced, and upon this evidence the clerk must and did determine the question of allowance of the stay of execution. It must be evidence which satisfies the clerk that the person making the showing is the owner of real estate of sufficient value, over incumbrances, to pay the judgment—all of which was done in this case. It seems very clear to us that in the determination of such a question, involving the necessity, of introducing evidence, the clerk performs judicial duties. He exercises a right of judgment and a discretion in determining the facts on which that judgment is based, and hence he is the exclusive judge of the evidence on which the stay is allowed or refused. This is certainly the exercise of judicial authority. Shearman & Redfield on Negligence, Sec. 163. Vanderheyden v. Young, 11 Johns., 158. Martin v. Mott, 12 Wheat., 31. Wilson v. Mayor, 1 Denio, 599. Weaver v. Devendorf, 3 Id., 119. Chickering v. Robinson, 3 Cush., 545. Mason, 14 Iowa, 514. Howe v. LAKE, CH. J. Brock v. Hopkins. This is a petition in error from Otoe county, and presents but a single question for our decision. It is simply whether a clerk of a district court, who "negligently and carelessly" takes insufficient security for stay of execution, is liable, at the suit of the judgment creditor, for the damages thereby occasioned. The learned judge in the court below held, that in such case, the clerk was not liable. This decision was based on the ground that in taking such security he acts judicially; and that judicial officers are not liable for acts negligently or carelessly performed, whereby an injury is occasioned to another person. It is true that in the performance of his duty, under the statute providing for stay of execution, the clerk is required to exercise his judgment to a certain extent. He is to be satisfied that the security which he accepts is such as the statute requires to be given. And doubtless, if he act with caution in what he is called upon to do, and in all respects as a reasonably prudent person would be likely to do in transacting the same business, if it concerned his own interests, this is all that should be required of him. But he should be held to at least that degree of care, in the performance of so important a duty as that of taking bail for stay of execution, where the whole amount of the judgment might be lost to the creditor, through the incompetency or negligence of the clerk, if a less stringent rule were to govern. We are of opinion that it would be carrying the rule of non-liability altogether too far, to hold that a clerk, in the performance of this duty, comes within the class of judicial officers, who are exempt from liability for damages occasioned by their wrongful, negligent, or careless acts. We hold that the clerk of a court in this state is a Brock v. Hopkins. ministerial officer merely; and the fact that he is required to take and approve security in certain cases, does not invest him with a judicial character. And the legislature seems to have been very careful, notwithstanding the imposition of these peculiar duties upon clerks of courts, to have it understood that they do not thereby lose their ministerial character, or become absolved from liability for damages occasioned by their official neglect. Section 897, of the code of civil procedure, provides that "The ministerial officer, whose duty it is to take security in any undertaking provided for by this code, shall have the right to require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer. The taking of such an affidavit shall not exempt the officer from any liability to which he might be otherwise subject for taking insufficient security." It is true that this statute does not mention the cases in which such liability would exist. It is wholly silent on that point. But surely we can conceive of no case wherein it would be proper, except wherein the clerk has willfully, or carelessly and negligently caused the damage. The judgment is reversed and the cause remanded for further proceedings. REVERSED AND REMANDED. Simpson v. Gregg. $ 237 11 130 5 237 RICHARD D. SIMPSON, PLAINTIFF IN ERROR, V. J. H. GREGG 39 AND OTHERS, DEFENDANTS IN ERROR. 1. Practice: REFEREE: NEW TRIAL. To obtain a review of the decision of a referee, a motion for a new trial is necessary. 2. 3. : : EXCEPTIONS. Where the motion for a new trial is based upon errors in the admission or rejection of testimony, : When, in such case, no motion for a new trial is made, the alleged errors will not be considered, but the judgment will be affirmed. ERROR from the district court of Otoe county. G. B. Scofield, for plaintiff in error. S. H. Calhoun, for defendants in error. LAKE, CH. J. Judgment was rendered in this case in the court below, as is admitted, although it does not affirmatively appear from the record, upon the report of a referee, to whom the cause was referred generally. To the report of the referee several exceptions were filed, but what disposition was inade of them by the court does not appear. Neither does the record show that any exceptions were taken to any action of the court, save the final judgment. In order to have a review of the decisions of a referee under the code, a motion for a new trial must be filed, precisely the same as where the trial is to the court. And if the motion be based on the improper admission or rejection of testimony, or the ruling of the referee upon questions of law arising before him, it should appear affirmatively that exceptions were taken at the 93 5 237 42 654 5 237 46 853 5 238 8 336 Vaughn v. Clark. time the alleged errors occurred. In other words, it should appear, from an inspection of the record, that the alleged errors were in fact committed by the referee, and that exceptions were taken thereto at the proper time. For the reason, therefore, that no motion for a new trial was made, we cannot consider the alleged errors, and the judgment is affirmed. Judgment AFFIRMED. MRS. JAMES Vaughn, plaintifF IN ERROR, V. Clark and 1. Judicial Sale. A purchaser at judicial sale, under a decree of foreclosure, takes the property subject to whatever liens may exist thereon at that time. 2. : TAXES. And if such purchaser, after the sale, pay delinquent taxes that have accumulated thereon, he is not entitled to be reimbursed out of the purchase money as against the lien of a junior mortgagee. ERROR to the district court of Merrick county. J. M. Woolworth and W. H. Webster, for plaintiff in error. A. Ewing, for defendants in error. LAKE, CH. J. This case, although entitled as one in error, was really brought into this court by appeal. However, the case being one in equity is properly before us, and it will be considered the same as if this technical irregularity did not exist. The action below was brought by Clark and French as junior mortgagees, for the purpose of enforcing their equitable lien against certain surplus moneys in the |