Shull v. Barton

77 N.W. 132, 56 Neb. 716, 1898 Neb. LEXIS 318

• Court: Nebraska Supreme Court
• Decided: November 17, 1898
• Docket: No. 8377
• Status: Published

Opinion

Ragan, C.

Henry B. Shull and others.have filed a petition in error here to review a judgment of the district court of Saline county recovered against them by John Barton and others. To a proper understanding of the points decided here it is necessary to make a statement of some of the undisputed facts disclosed by the record. The plaintiff in error Shull is the coroner of Saline county. The other plaintiffs in error are the sureties on his official bond. In July, 1891, a copartnership under the name of Foster & Ayres was conducting a mercantile or drug business in De Witt, in said county. On that date Coe & Co., Brittain-Smith & Co., Midland Coffee & Spice Company, Funke & Ogden, Raymond Bros., The American Hand-Sewed Shoe Company, and one Warren E. Ayres, all of which parties will hereinafter be denominated the seven creditors, each brought a suit against Foster & Ayres in the county court of said county, and each caused a writ of attachment to be issued and placed in the hands of the sheriff of said county. The sheriff, by virtue of these several writs of attachment, seized the mercantile stock of Foster & Ayres. Thereupon Lafayette M. Foster and Jennie A. Foster, his wife, doing business as Foster & Co., brought a replevin action against the sheriff for the goods which he held under the attachment writs, and by the process issued in that action all the goods held by the sheriff were taken and delivered to Foster & Co. The coroner, plaintiff in error here, executed the replevin writ. The sheriff, who was made sole defendant in the replevin suit, gave notice to the coroner of exceptions to the sufficiency of the sureties who had signed the replevin bond of Foster & Co.; and thereupon the surety who had signed the replevin bond made affidavit that she was a resident of Saline county; that she owned real estate therein not exempt from execution of the value of $2,500. This affidavit the surety delivered to the coroner. Indeed it was sworn to before him, and he at once approved the bond or undertaking in replevin. About August 1 of said year the seven creditors obtained judgments in the county court on their claims against Foster & Ayres. The county judge issued executions upon these judgments, or some of them, and they came into the hands of the sheriff, and he at once levied them upon the same property which he had attached and which had been replevied, and delivered to Foster & Co.; arid by virtue of said executions he again took into his'possession said mercantile stock. The goods were again by an action of replevin taken from the- possession of the sheriff. When the sheriff levied the execution upon the mercantile stock the replevin action brought by Foster & Co. was pending and undecided. This replevin action proceeded to trial and the sheriff had judgment for a. return of the replevied property or its value in money. The replevied property was not returned. The sheriff caused an execution to be issued upon his judgment, and this was returned wholly unsatisfied. The sheriff and the seven creditors then brought this action in the district court of Saline county against the coroner and the sureties on his official bond. For cause of action they set out the claims of the seven creditors against Foster & Ayres; the seizing of the latter’s property by writs of attachment; its having been taken" from the sheriff on the writ of replevin in favor of Foster & Co.; the approval of the undertaking in replevin by the coroner; the reduction of the claims of the seven creditors against Foster & Ayres to judgment; that the judgments were wholly unpaid; the prosecution of the replevin action to judgment in favor of the sheriff; the return of an execution issued on such judgment unsatisfied; the insolvency of Foster & Co. and the surety on their replevin bond as a reason why they had not brought suit on said bond, and averred that at the time the coroner approved of the replevin bond the surety thereon was then and there insolvent; and that the coroner negligently approved said bond, by reason whereof the said seven creditors had lost their liens upon the attached property, and lost the full amount of their claims against Foster & Ayres. On the trial in the district court the coroner and his sureties demurred to the petition of the sheriff and the seven creditors on the ground that there was a defect of parties plaintiff and that several causes of action were improperly joined in the petition. This demurrer was overruled and the coroner and his sureties then filed an answer to the petition, in which, among other things, they averred that there were several causes of action improperly joined in the petition and that there was a misjoinder of parties plaintiff. On the trial the coroner and the sureties offered in evidence the executions already alluded to, which had been issued by the county court in favor of the seven creditors against Foster & Ayres, and offered to sIioav that the sheriff had by virtue of these executions seized the same property which the seven creditors had formerly attached as the property of Foster & Ayres, and Avhich had been taken from the possession of the sheriff in the replevin action. The record presents but three questions which we deem it absolutely necessary to notice.

1. It is contended first in behalf of the coroner that the uncontradicted evidence shows that he acted in good faith in approving the replevin bond, and that he is not liable simply for negligence. The evidence is undisputed that the sheriff duly notified the coroner that he objected .to the sufficiency of the surety on the undertaking in replevin; that the only inquiry or effort which the coroner made to ascertain if that surety was sufficient was that he took and relied upon the surety’s affidavit, filed Avith him, in Avhicli the surety stated that he was the owner of real estate in the county not exempt from execution of the value of $2,500; that the averments of this affidavit were absolutely and unqualifiedly false; but the evidence does not show that the coroner acted in bad faith in approving this undertaking. It does show beyond peradventure that he was guilty of negligence in the premises. Section 189 of the Code of Civil Procedure provides that when an officer is notified by a defendant in replevin that he excepts to the sufficiency of the sureties on a replevin bond, then the surety must justify in the same manner as “bail on arrest.” At the time this provision of the Oode was adopted there was in force in this state a statute which permitted the arrest of a defendant in a civil action for debt; that the defendant so arrested might, at any time before judgment, be released by causing one or more sufficient bail to execute an undertaking to the plaintiff to the effect that if the judgment should be rendered in the action against the defendant lie would render himself amenable to the process of the court. The statute further provided that the plaintiff might object to the sufficiency of the bail given, and that if he did so the sheriff should require the bail to justify. The statute .further provided that the bail should justify by appearing before a proper officer at a time and place mentioned for examination by him under oath, touching his sufficiency as bail, in such manner as such officer might think proper. It seems to have been the purpose and intention of this statute that the sheriff should not be liable for having taken an insufficient bail, provided it justified as required by the statute. In other words, if the officer, before whom the bail appeared for justification approved it, this was a protection to the officer. (See General Statutes 1873, id. 547.) But this statute was repealed by the legislature of 1887. (See Session Laws 1887, p. 654.) Since no statute exists in this state authorizing the arrest of a defendant in a civil action for debt, the provision of section 189 of the Code, which provides that the surety in a replevin bond must justify in the same manner as bail on arrest, is meaningless. Neither the common law nor the old English statutes permitted a sheriff to admit to bail one arrested in a civil action for debt, and exonerate himself from liability to the plaintiff for the escape of the defendant by having the bail for the defendant justify. But the rule at common law was that if the defendant, after being arrested, was admitted to bail by the sheriff, and then failed to appear, the sheriff and the sureties on his official bond were liable to the plaintiff for his debt. (3 Blackstone, Commentaries [Chitty’s ed.] 290.) We conclude,, therefore, that, where exceptions are taken to the sureties on a replevin bond, the officer is not obliged to cause the sureties to justify in the manner which the old statute required bail on arrest to justify; and the officer’s failure to cause the sureties to so justify does not necessarily and of itself render him liable to the defendant in the replevin action. Nor do we think that if the officer should require the sureties on the replevin bond to justify in the same manner as the old law required “bail on arrest” to justify, he would thereby unconditionally release himself from liability by reason of the insufficient surety on the replevin bond. Section 189 of the Code of Civil Procedure provides that the sheriff or other officer shall be responsible for the sufficiency of the sureties, if excepted to, until they justify; and since no statute exists which prescribes before whom the surety shall justify, nor what ' facts shall be made to appear to protect the officer, it follows that when the sureties on the replevin bond are excepted to the officer approves the replevin bond at his peril. He must of course always and at all times act in good faith. But good faith alone will not protect him (People v. Core, 85 Ill. 248.) If the surety on the replevin bond, when approved, is then good, solvent, and sufficient, subsequent insolvency of the surety would not render the officer liable. But to escape liability for an insufficient surety on a replevin bond after it has been excepted to, and the officer had notice thereof, he must not be guilty of negligence; and if he negligently approve a replevin bond which is signed by insolvent or insufficient sureties he is answerable for the consequences. (People v. Core, 85 Ill. 248; Sparhawk v. Bartlet, 2 Mass. 188; Young v. Hosmer, 11 Mass. 88; Rayner v. Bell, 15 Mass. 377.) The mere taking by the officer of the affidavit of the surety that he, the surety, is the owner of real estate situate in the county where the replevin action is pending, not exempt from execution, of twice the value of the replevied property, is of itself not enough to justify the officer in approving the replevin bond, and such affidavit will not of itself protect the officer from liability for an insufficient bond. In such a case it would seem that the officer should make inquiries of persons likely to know as to the financial standing, solvency, and property of the surety. He might require the surety to schedule his assets and liabilities, and with this in hand he should make such examination of public records and investigations and inquiries as a reasonably prudent man would make before extending credit to the surety to the amount of the bond. In the case at bar the coroner did nothing,—made no inquiries, instituted no search,— to ascertain the financial standing and worth of the surety on the replevin bond. He did not require the surety to furnish him a schedule of his assets and liabilities. He simply rested satisfied with the voluntary affidavit of the surety as to the worth of the property which he owned. This was not enough to protect the coroner from liability. He was guilty of negligence.

2. But we think the district court erred in refusing to permit the coroner to introduce in evidence the executions issued by the county court baséd on the judgments rendered in favor of the seven creditors against Foster & Ayres. These executions and the return of the officer thereon tended to show that the seven creditors, or some of them, had by virtue thereof seized the identical property which they had previously attached. If the seven creditors who brought this action, by virtue of the executions from the county court, took the identical and all the property which they had previously attached, then they have no cause of action against the coroner for approving an insufficient bond. How can it be said that they have lost the property which they attached because of the coroner’s approving an insufficient replevin bond therefor when by another legal process, namely, an execution, they subsequently became possessed of the same property for the satisfaction of the same debt for which they had attached it? It is true that the levy of this execution by the sheriff and the seven creditors upon this property which had been attached and then replevied was void; that they and each of them were trespassers and, probably, in contempt of court because thereof. But they are in no position here to take advantage of their wrongful act. There is no conflict of authority' upon the proposition that when property has been attached and then replevied, the plaintiff in the attachment, while the replevin suit is pending, cannot levy an execution or attachment thereon. Indeed, some authorities go so far as to say that property attached and then replevied is in custody of the law, and while the replevin action is pending cannot be seized on attachment or execution at the suit of any person. (Bates County Nat. Bank v. Owen, 79 Mo. 429.) But every court to which the question has been presented, we think, has denied the right of a plaintiff who has attached property after it had been replevied from him, and while.the replevin action was pending, to levy another attachment or execution upon it. We cite a few of the cases: Goodheart v. Bowen, 2 Ill. App. 578; Rhines v. Phelps, 3 Gil. [Ill.] 455; Hagan v. Lucas, 10 Pet. [U. S.] 399; Pipher v. Fordyce, 88 Ind. 436; Acker v. White, 25 Wend. [N. Y.] 614; Selleck v. Phelps, 11 Wis. 398; Metzner v. Graham, 57 Mo. 405; Bates County Nat. Bank v. Owen, 79 Mo. 429. Under our statute, when attached property is replevied and delivered to the plaintiff in the replevin suit, and the replevin bond required by statute is given and approved, then that property, pending that replevin action, cannot be taken in attachment or execution at the suit of the plaintiff who has attached it. The reason is that the statute makes the bond take the place of the property. Many courts give as a reason for this that the property is in custody of the law. We do not know whether this is the correct reason, but certainly, under our statute, the bond takes the place of the property. The conditions of the bond are that the plaintiff in the replevin suit will make return of the property or pay its Avalué in money if the judgment go against him. The party then Avho has attached property,- if it be replevied from him or from the officer AAdio executed his writ of attachment, must follow the replevin action to final judgment, and if successful satisfy his claim by an execution upon the judgment and, failing in that, look to the replevin bond, and, failing in this, to the negligence or bad faith of the officer in taking an insufficient replevin bond, if such were the facts.

3. As already stated, the plaintiffs below in this action were the sheriff of Saline connty and the seven creditors who had attached the property of Poster & Ayres. The. sheriff is not a proper party plaintiff in this action. He was the defendant in the replevin action, obtained a judgment in that action, and caused an execution to be issued thereon which was returned, “No property found.” As the defendant in the replevin action he represented the seven creditors and Avas the proper defendant to that action. Doubtless he might Inure maintained a suit on the replevin bond for the satisfaction of the judgment Avliich he obtained against the plaintiff in replevin, as he was the obligee in that bond, but that he did not do, because, as stated in the record, that bond is worthless. The replevin bond being worthless, and the execution issued on the judgment rendered in the replevin action having been returned “No property found,” the sheriff had no further connection with the controversy. He had discharged his duties, and all of his duties, in the premises. He cannot maintain an action against the coroner for damages for approving an insufficient replevin bond. He is not the real party in interest. The seven creditors have not a joint action against the coroner for approving an insufficient repleAdn bond, and they cannot unite as plaintiffs in such an action. If the coroner approved an insufficient replevin bond and any one of the seven creditors sustained damage thereby, then a cause' of action arose in favor of such creditor against the coroner and the sureties on his official bond. ■ But these creditors are not agents, one for the other, so that one may bring an action for all; nor may all of them jointly bring such an action. The judgment of the district court is reversed and the cause remanded with instructions to dismiss the action so far as the sheriff of Saline county is concerned, and with permission to each of the seven creditors to docket a separate action against the coroner and his sureties, and for such other proceedings as are according to law.

Reversed and remanded.