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Estate of Spiegel v. Western Surety Co.8/9/2005
ember 13, 1995, then Spiegel would have faced a solvent debtor. However, by June 9, 1997, the debtor had become insolvent (although the bankruptcy proceeding pending on June 9, 1997 ended a short time later on July 23, 1997), and Spiegel is quick to point out that he could not have collected against an insolvent debtor in June of 1997. Therefore, we find that Spiegel was injured by the clerk's failure at least in that respect (which Spiegel's own argument suggests): the clerk's failure to properly enroll the judgment prevented Spiegel from collecting against Rayner while Rayner was still solvent. We find this to be an injury that would have been complete, ascertainable and definite on or before June 9, 1997: the loss of the opportunity to collect against a solvent individual. In light of this, we find no merit in Spiegel's arguments about there being no actual loss suffered until some twelve or thirteen years after his first attempt to enroll his judgment against Rayner.
. Therefore, we find Spiegel's argument on the timing of his injury (namely, that he suffered no injury from the circuit clerk's omission until some twelve or thirteen years after the omission took place) to be without merit.
. We also note that Spiegel's arguments on accrual and injury centering around the decision of the bankruptcy court conveniently gloss over (or simply ignore) the timetable involved in this case as a whole. After his initial attempt to enroll the New Jersey judgment, Spiegel took no other apparent action for approximately seven years. He first attempted to enroll the judgment on May 2, 1990, but he apparently did not discover the circuit clerk's error until possibly as many as seven years later, at which point, on June 9, 1997, he made his second attempt at enrolling the New Jersey judgment. What Spiegel was doing (or not doing, as the case may have been) during these seven years, we cannot say; however, it is certain that, had Spiegel made some diligent effort to enforce the judgment within a reasonable time after presenting it to the clerk for enrollment, then he would most certainly have discovered the circuit clerk's error sooner. To borrow language from the Flushing case, the failure to properly enroll a judgment is an easily ascertainable fact within a short time after the omission occurs. Flushing, 595 N.Y.S.2d at 287.
. Spiegel does point out that the Harrison County judge on the bench in 1990 recalled conducting a judgment debtor examination of Mrs. Rayner, and Spiegel also points out that the Chief Deputy Circuit Clerk of the county at the time opined that the enrolled judgment had been misplaced or misfiled. Beyond this, however, Spiegel can not demonstrate that he took any other steps to enforce the New Jersey judgment after conducting the judgment debtor examination. Spiegel certainly has not made any showing to explain why, after conducting a judgment debtor's examination, no other subsequent action was taken for roughly seven years.
. From the record, we do not see anything to cause us to seriously doubt that the circuit clerk committed some kind of negligence or error in failing to properly enroll the judgment in May of 1990; however, from the record, we do not see anything to cause us to suppose that Spiegel diligently sought to enforce his judgment and see the circuit clerk's error corrected in a timely fashion. Wayne General Hosp. v. Hayes, 868 So. 2d 997, 1001 ( ) (Miss. 2004). Our review of the record leads us to conclude that the biggest reason why Spiegel was not finally precluded from collecting his 1990 judgment until 2002 was because Spiegel delayed in making any meaningful collection attempts until participating in a subsequent bankruptcy proceeding ins
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