25 Mich. 10 (Mich. 1872), Dunphy v. People ex rel. Whipple

• Citation: 25 Mich. 10
• Opinion Judge: Cooley, J.
• Party Name: William H. Dunphy and others v. The People, for the use of Frank Whipple
• Attorney: E. W. Harris and Ashley Pond, for plaintiffs in error. Anson E. Chadwick, for defendant in error.
• Judge Panel: Cooley, J. Christiancy, Ch. J., Campbell, J.concurred. Graves, J., did not sit in this case. Christiancy, Ch. J., concurred. Campbell, J.:
• Case Date: April 23, 1872
• Court: Supreme Court of Michigan

Page 10

25 Mich. 10 (Mich. 1872)

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

Page 11

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

Page 12

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...