Bowen v. Lovewell

• Decision Date: 31 May 1915
• Docket Number: 17
• Citation: 177 S.W. 929,119 Ark. 64
• Parties: BOWEN v. LOVEWELL. DRIVER v. RHODES
• Court: Arkansas Supreme Court

177 S.W. 929

119 Ark. 64

BOWEN v. LOVEWELL.

DRIVER v. RHODES

No. 17

Supreme Court of Arkansas

May 31, 1915

Appeals from Mississippi Chancery Court; Charles D. Frierson Chancellor; reversed in part and affirmed in part.

Decree affirmed in part and reversed in part and cause dismissed.

A. B Shafer, for appellants.

1. As to the appeal bond. The court erred in overruling the demurrer to that part of the complaint which sought a recovery against the sureties upon the bond given upon appeal from the judgment of the county court in the election contest to the circuit court. The judgment under section 2862 Kirby's Digest, is self-executing and as such is not subject to stay or supersedeas. 106 Ark. 433; 153 S.W. 619. It was not given in pursuance to any order of court. The bond was executed in the county court. It was an ordinary appeal bond, and the sureties could not be liable for more than the judgment which could be recovered from the principal, and the fees and emoluments of the office can not be recovered in a statutory proceeding to contest an office in the county court or on appeal. 86 Ark. 259; 110 S.W. 1024. Even costs can not be recovered. 128 S.W. 563.

2. As to the Governor's bond. This bond was not authorized by law and was without consideration and absolutely void. It bears no date, and was executed after the judgment of the county court in the contest case was rendered in favor of appellant. Kirby's Digest, § 2862; 67 Ark. 135; 52 Id. 174; 67 Am. St. 271; 94 Am. Dec. 370. If the contestee was not entitled to the commission then the contestant was, and the consideration was illegal and void. 23 Ark. 390; 63 Id. 318; 115 N.C. 448; 44 Am. St. 463; 68 Ark. 276. Whether the contestee was entitled to the commission or not, the bond was extorted colore officii by the Governor and is void. 62 Tex. 515; 48 N.Y. 347.

3. As to the injunction bond. On final hearing the injunction was made perpetual. 69 Ark. 606; 65 S.W. 106; 5 L. R. A. 403. The condition of the preliminary bond was never broken and there was therefore no liability. 208 U.S. 149; 33 App. Cas. (D. C.) 228; 208 U.S. 149, 155.

4. This was an action for money had and received and is barred by the statute of limitations. Kirby's Dig., § 5064; McCrary on Elections (4 ed.), P 367, p. 277; 69 Ark. 606; 65 S.W. 106; 87 Oh. St. 117; 100 N.E. 322. An appeal does not stop the running of the statute. 59 Kan. 496; 53 P. 482; 12 Okla. 502; 71 P. 1073; 94 F. 921; 36 C. C. A. 549; 84 Kan. 393; 114 P. 241; 105 N.E. 1045.

Coleman & Lewis, for appellee.

1. The judgment of the county court was self-executing and could not be superseded. The sureties are practically the same on all the bonds, and as there is no doubt of the liability on at least two of the bonds it is useless to waste time as to the liability on the supersedeas bonds.

2. The so-called Governor's bond recites the circumstances under which it was given and was not without consideration nor void. It was not extorted colore officii. 18 N.Y. 115; 71 Ala. 479; 16 N.Y. 439; 41 N.Y. 464; 37 Barb. (N. Y.) 179. No compulsion was used by the Governor. 10 Wall. (U.S.) 395, 406; 15 Peters, 290; 79 Ill. 564; 13 Iowa 322; 26 Fed. Cas. 428; 57 Cal. 157; 86 Cal. 367; 24 P. 1072; 133 Mass. 461; 100 Pa.St. 307; 78 N.W. 98.

3. If given voluntarily, the bond was good as a common law obligation. 16 N.Y. 439; 28 Id. 318; 41 Id. 464; 133 Mass. 461; 100 Pa.St. 307; 18 N.Y. 115; 7 Ariz. 108; 60 P. 872; 5 Cyc. 752; 10 Wall. (U.S.) 395; 56 Ark. 108; 75 Minn. 533; 78 N.W. 98; 86 Cal. 367; 62 Tex. 615; 16 N.Y. 439; 28 Id. 318; 41 Id. 464.

4. Bowen and his sureties are liable upon the injunction bond. It was finally decided that the injunction should not have been granted. 157 F. 92; 18 Ill. 309; 1 McCord, Chy. (S. C.) 347; 2 High on Injunctions (4 ed.), § 1673; 24 Ind. 439; 62 Md. 88.

5. The statute of limitations did not run. Kirby's Dig., § 5086; 29 Ark. 201; 54 F. 269.

OPINION

MCCULLOCH, C. J.

Appellant, Bowen, and appellee, Lovewell, were opposing candidates for the office of sheriff of Mississippi County at the general election held in September, 1900. Bowen was elected, according to the face of the returns, and Lovewell instituted a contest which continued in the courts until after the expiration of the term of office. The county court decided the contest in favor of Lovewell, but the circuit court on appeal decided in favor of Bowen. This court reversed the judgment and remanded the case for a new trial, and the last judgment was in favor of Lovewell, finally adjudicating his title to the office.

This is an action instituted by Lovewell to recover the emoluments and fees of the office, being instituted, as before stated, after the expiration of the term. The contest was decided in the county court on October 24, 1900, and Bowen immediately appealed and executed a bond in statutory form to supersede the judgment, the bond providing that "the said Sam Bowen will pay all the costs and damages that may be adjudged against him on appeal granted in the cause, or in the event of his failure to prosecute said appeal to final judgment in the circuit court, or if said appeal for any cause be dismissed against him, the said sureties shall pay all costs and damages and perform the judgment of the court appealed from, also that said appeal shall be prosecuted without delay, and that he will satisfy and perform the judgment of the circuit court of Mississippi County, which may be rendered in this cause."

There was a like contest between the opposing candidates for circuit clerk, Driver and Rhodes, and the result was the same in each case. Another suit is pending here on appeal, instituted by Rhodes against Driver, and the facts are the same except as to the amount of the judgment. The decision of this case will therefore control the case of Driver v. Rhodes.

Bowen and Driver applied to the Governor for commissions for the respective offices of sheriff and clerk, claiming that they were entitled to the commissions by reason of the fact that they had been returned as elected, and that the judgment of the county court in favor of their respective contestants had been superseded. Lovewell and Rhodes appeared before the Governor and resisted the efforts of their adversaries to claim the commissions and asserted the right to the commissions under the judgment of the county court pursuant to the statute which declares that if the court in such a contest "shall be of the opinion that the person proclaimed elected is not duly elected, and the person contesting is elected, an order shall be entered to that effect, and a copy thereof shall forthwith be transmitted to the Governor, who shall commission the person declared duly elected by such order." Kirby's Digest, § 2862.

The Governor decided, over the protests of Lovewell and Rhodes, to issue commissions to their adversaries, Bowen and Driver, but required the latter to execute and file with him a bond in the following form, signed by numerous parties as sureties:

"Whereas, at the general election held in Mississippi County, Arkansas, on the 3d day of September, 1900, the election returns showed that Chas. S. Driver was elected clerk of the circuit court, and Sam Bowen was elected sheriff of said county; and, whereas, J. W. Rhodes contested the election of clerk, and J. A. Lovewell contested the election of sheriff, and on the 24th day of October, 1900, the county court of Mississippi County rendered a judgment declaring the said contestants were duly elected to said offices respectively, and that the contestees were not elected; and, whereas, the contestees have appealed from said judgment to the circuit court of said county, and have filed a bond and superseded said judgment; and, whereas, the contestees are both asking for commission from the Governor; now, therefore, in consideration of the issuing of commissions to them, the said Chas. S. Driver and Sam Bowen, as principal, and , as sureties, undertake and agree to pay to the said J. W. Rhodes and J. A. Lovewell the fees and emoluments of the office of circuit clerk and sheriff of Mississippi County, Arkansas, respectively, if it shall be finally determined on said appeal that they were legally elected to said offices respectively."

Bowen and Driver took the oaths of office respectively, under the commissions issued to them and continued in office throughout the full statutory term and enjoyed the emoluments thereof. On July 18, 1901, which was shortly after this court had reversed the judgments in the contest cases, the Governor issued a proclamation revoking said commissions and issuing new commissions to Lovewell and Rhodes, and the latter immediately took oaths of office and undertook to enter upon the duties of their respective offices; the contest proceedings being then pending in the circuit court on remand of the causes from this court. Bowen and Driver then instituted actions in the chancery court of Mississippi County to enjoin Lovewell and Rhodes from interfering with their incumbency of the offices and the chancellor issued a temporary injunction, as prayed for in the complaints, upon the plaintiffs giving bond with security conditioned that "should it be finally decided that said injunction ought not to have been granted said Sam Bowen, and his sureties herein shall pay to the said J. A. Lovewell the damages he may sustain by reason of the injunction in this action." A similar bond was executed in the suit of Driver against Rhodes. On the hearing of that cause, the chancellor rendered a decree in favor of Bowen and Driver, making the injunctions perpetual, and on appeal to this court those decrees were affirmed. Rhodes v. Driver, 69 Ark. 606, 65 S.W. 106. The ground of the decision of this court was that...