People ex rel. Whipple v. Dumpley

2 Mich. N.P. 197

• Court: Circuit Court of the 31st Circuit of Michigan
• Decided: August 15, 1871
• Status: Published

Opinion

By tJu Court,

Mitchell, J.

The first material question raised is whether Dumpley ceased to be Sheriff after the 20th of Jan" uary, by his having failed to renew his bond required by law.

Section 5, of Article 10, of the Constitution, provides that the Sheriff “May he required by law to renew his security from time to time, and, in default of giving such security, his - office shall be deemed vacant.”

Section 415, p. 207 of Compiled Lates, requires the Sheriff within twenty days after the first Monday in January, in each year subsequent to each election, to renew the security required to be given before entering on the duties of' his office, which shall be for the same amount, approved, &c., as in the first instance.

It is claimed by the defence that if his office, after the expi. ration of the prescribed time, without renewing his security, as required by law, is by the Constitution deemed vacant, then his sureties cannot be held under his first bond liable for any act or omission after that time, and that the omission to give a new bond is not assigned as a breach.

“ Where a Sheriff’s bond is an annual one the sureties therein are liable for his defaults only during the time between the execution of the bond by them and the execution of the next year’s bond.” Hewitt vs. State, 6 Har. & J. 95.

But here no new bond was given. He continued to act and to execute process already in his hands, though his office might have been deemed vacant by the strict letter of the law. Was he not authorised and required to carry out the execution of process already in his hands, the execution of which had been already commenced, and would not his sureties be liable for any default or neglect in its execution until a new bond ? That is, does not the bond extend to all acts commenced while that bond is strictly in force, though the particular omission complained of occur afterwards, unless a new bond has been given in the meantime ? It occurs to me that the bond extended to all acts and omissions while he assumed to act as Sheriff, without renewing his bond or surety, and I so hold the law to be, and that his office was not necessarily vacant unless some steps were taken to declare it vacant.

The main condition of the bond is, that be shall well and faithfully in all things perform and execute the office of Sheriff during his continuance in office by virtue of said election. He Was elected for the term of two years. Some proceedings would be necessary to declare his office vacant so as to release his sureties. But even if the office did become vacant, can the defendants avail themselves of the fact except by special-notice equivalent to a plea setting up the fact in avoidance of liability ? “ In an action against a Sheriff and his sureties, on his oond, tl e surety cannot object except by plea that the bond declared upon has been suspended by a subsequent one.” Hill vs. Fitzpatrick, 6 Alabama, 314. Such a plea or notice would be as essential in a case where a party seeks to be released because no new bond has been given. It is clearly special matter of defence if it is any defence.

The next proposition is, can the Sheriff or his surety avail themselves of any irregularity in the judgment not amounting to a jurisdictional defect ? I find as matter of law that they cannot.

“ A Sheriff against whom a recovery is sought for the failure to return an execution, cannot be allowed to object that the execution is irregular.” McKan vs. Colclough, 2 Ala., 74; Bondwrant vs. Woods, 1 Id, 543.

“ In a suit against a Sheriff and his surety for neglect to pay over the proceeds of sale of land for taxes, they cannot object to the sufficiency of the judgment or execution under which he made the sale and received the proceeds,” &c. People vs. McHatton, 2 Gillman, 731.

“ A Sheriff cannot question the regularity of an execution, and he is not liable for enforcing an irregular execution.” Ford vs. Treamen, 1 N. & M., 234.

“ In an action against the Sheriff for neglect or misconduct in^the service of an execution he is not permitted to impeach the creditor’s judgment except on the groundthat it was obtained by fraud.” Adams vs. Balch, 5 Greenleaf, 1885; “and even if he can for fraud he should show that he represents a creditor of the judgment debtor.” Clark vs. Foxcraft, 6 Greenleaf, 2961.

It is claimed that the property sold was not the property of the defendant, and therefore the plaintiff has lost nothing.

This is hardly a proper case in which to try the title to that property. Questions of fraud and other questions affecting.the legality of the transfer might arise, while the real parties in interest would not be .before the Court. .The plaintiff had a right to buy whatever title the judgment debtor had, and whether it should turn out good or bad was of no importance to the Sheriff. The plaintiff was entitled to the full execution and return of the process to enable him to take whatever steps might have been necessary to perfect his title. Without the return of the execution and certificate of sale he is deprived of this right, and the Sheriff and his sureties are bound- to make the plaintiff whole for all the loss he may have sustained. I think the true measure of damage would be within the full value of the land, or the amount ol the judgment, if the land was sold for that amount. I find it to have been sold for that amount.

I therefore find that the said William H. Dumpley, Sheriff, &c., did committ the breach of the bond assigned, and did not make return of the execution, &c. I assess the plaintiff’s damages by reason thereof, at the sum of $439 46, with interest for three years and ten months, $116 54; total damages, $553 00_

Let judgment be entered accordingly.