Dunphy v. People ex rel. Whipple

• Decision Date: 23 April 1872
• Citation: 25 Mich. 10
• Court: Michigan Supreme Court
• Parties: William H. Dunphy and others v. The People, for the use of Frank Whipple

25 Mich. 10

William H. Dunphy and others v. The People, for the use of Frank Whipple

Supreme Court of Michigan

April 23, 1872

Heard April 16, 1872

Error to St. Clair Circuit.

This action was brought by Frank Whipple, in the name of the People, against William H. Dunphy, former sheriff, and Daniel H. Cole, Anson S. Welch and Albert Staley, his sureties, upon the bond of said Dunphy as sheriff, to recover damages for the failure of said Dunphy, while acting as sheriff to return an execution. The execution issued upon a judgment obtained in a suit commenced by attachment, wherein said Whipple was plaintiff and Joel B. Wheaton was defendant. The attachment was levied on certain lands within the county but the defendant was not found. The sheriff levied the execution upon the same lands which had been attached, and proceeded during the life of the execution to advertise and sell the same and they were bid off by, and sold to, said Whipple for the full amount due on the execution. No certificate of this sale was ever delivered to Whipple, or filed in the office of the register of deeds; and the execution was never returned. The cause was tried before the court without a jury, and judgment was rendered in favor of the plaintiff, and the damages assessed at the full amount of the execution and interest. The defendants brought the case to this court on writ of error.

Judgment affirmed.

E. W Harris and Ashley Pond, for plaintiffs in error.

Anson E. Chadwick, for defendant in error.

Cooley J. Christiancy, Ch. J., Campbell, J.concurred. Graves, J., did not sit in this case.

OPINION

Cooley, J.

This was an action upon the bond of Dunphy as sheriff of the county of St. Clair, given December 24, 1866, and conditioned for the faithful performance of his duties as such, during his continuance in office, by virtue of his election, which took place in November, 1866, for a term of two years, commencing the following January. The breach alleged was the failure to return an execution in favor of Whipple, which was issued November 30, 1867, returnable on the first Tuesday of February, then next ensuing. The first objection to a recovery is that the office of the sheriff became vacant by his failure to renew his bond within twenty days after the first Monday of January, 1868, and consequently he was not in office on the return day of the writ.

The sheriff, it appears, did fail to renew his bond, but he continued to act as sheriff, notwithstanding. The constitution provides, (Art. X, § 5) that "he may be required by law to renew his security from time to time, and in default of giving such security his office shall be deemed vacant." The statute (Comp. L. 1857, § 415) made it his duty to renew his bond within twenty days after the first day of January in each year subsequent to that upon which he shall have entered upon the duties of his office; without, however, expressly declaring that the office should be vacant if he failed in this duty; and it would not become vacant but for the constitutional provision quoted. There may possibly be a question whether that provision was designed to go further than to authorize the legislature to require new security, and to provide by law for treating the office as vacant, should he fail to give it. However that may be, if he continues in office and remains sheriff de facto, there can be no doubt, we think, that he is in by virtue of his election. It is the election, and that alone, which justifies his being treated as any thing but a usurper, and that together with his acting under it constitute the protection of those interested in the official acts performed by him.

It is further objected that the circuit court erred in rendering judgment on the bond, for the full amount of Whipple's execution. It appears that the sheriff levied upon certain land as the property of the judgment debtor, and it was sold as such and bid in by Whipple; but as the sheriff made no return and gave him no certificate of purchase, he was unable to assert his right to the land. It was also shown that previous to the levy the judgment debtor had made a transfer of these lands in trust to pay debts; and this is insisted upon as a sufficient excuse to the sheriff, for not perfecting the sale. Whipple, however, claims that as to him, the transfer was void.

Where the sheriff fails to return an execution, the debt is assumed to be lost, and the execution creditor is prima facie entitled to recover of him the full amount. But the sheriff is nevertheless allowed to make the one excuse for not performing his duty--that however faithfully he might have endeavored to do so, the effort would have been ineffectual because the defendant had no...