Barker v. Wheeler

• Court: Nebraska Supreme Court
• Writing for the Court: LETTON, C.
• Citation: Barker v. Wheeler, 71 Neb. 740, 99 N. W. 548 (Neb. 1904)
• Decision Date: 21 April 1904
• Docket Number: 13,538
• Parties: GEORGE E. BARKER ET AL v. BERT G. WHEELER

99 N.W. 548

71 Neb. 740

GEORGE E. BARKER ET AL v. BERT G. WHEELER

No. 13,538

Supreme Court of Nebraska

April 21, 1904

ERROR to the district court for Douglas county: IRVING F. BAXTER JUDGE. Affirmed.

AFFIRMED.

E. J Cornish, for plaintiffs in error.

Isaac Adams and J. P. Breen, contra.

LETTON C. DUFFIE and KIRKPATRICK, CC., concur.

OPINION

LETTON, C.

This case has already been before this court three times. See Wheeler v. Barker, 51 Neb. 846, 71 N.W. 750; Barker v. Wheeler, 60 Neb. 470, 83 N.W. 678, and Barker v. Wheeler, 62 Neb. 150, 87 N.W. 20. After it was remanded to the district court for the third time, a fifth amended petition was filed by the plaintiff, and the defendants moved to strike this petition from the files, for the reason that the allegations of the same constitute a different cause of action from those contained in the original petition; that James W. Eller, the principal upon the bond, was made a party to the action in the original petition, whereas, the said Eller is not named as a party in this petition; and that in the original petition it was alleged that the money in controversy came into the hands of Eller as county judge, by virtue of his office, whereas in this petition it is alleged that the money was received by color of his office. This motion was overruled, whereupon the defendants filed a demurrer, for the reason that there is a defect of parties defendant, in this, that it appears that this is an action upon the official bond of one Eller, county judge, the liability of these defendants being simply as sureties thereon. That, at the beginning of the action, Eller was made a party herein, pleading was filed by him, and trial had in part, and that Eller is a necessary party defendant. Defendants further demur on the ground that the facts stated are not sufficient to constitute a cause of action. This demurrer was overruled by the court; defendants elected to stand thereon, and judgment was thereupon rendered in favor of the plaintiff upon the pleadings. This is an error proceeding brought to review the action of the district court. After this action was dismissed as against Eller, a separate suit was brought against him to recover upon the same cause of action, and a judgment rendered therein. This judgment is pleaded in the fifth amended petition.

The main question is, can a party injured by the misconduct of a public officer bring a several action against the sureties on the official bond of such officer? The argument of the plaintiffs in error is substantially as follows: That at common law an action upon a bond could only be brought by the obligee therein. That the right to bring an action by a private person in his own name upon a bond, the obligee of which is the state or county, is granted solely by the provisions of section 643 of the code. That this section provides solely for a joint action against the principal and sureties; that the action must be prosecuted against all of the obligors, and that, since Eller the principal is not made a party in the petition under consideration, there is a defect of parties defendant which may be taken advantage of by demurrer. This contention of the plaintiffs in error is to some extent supported by the decision in the case of Aucker v. Adams & Ford, 23 Ohio St. 543, which holds that section 566 of the code of Ohio, of which section 643 of our code is a copy, prescribes the only manner in which persons injured by the official neglect or misconduct of a justice of the peace can have redress by action in their own names on the official bond of the justice. That the only form of action authorized by said section is a joint suit against all the obligors in the bond, and that, where a joint suit is the only remedy, it is error under the provisions of section 371 of the Ohio code, which is the same as section 429 of the Nebraska code, for the court to render a several judgment against one or more of the defendants, leaving the action to proceed against the others. He also cites Albertson v. State, 9 Neb. 429, and Ryan v. State Bank, 10 Neb. 524, 7 N.W. 276. Albertson v. State was an action brought against the county treasurer upon his official bond by the state of Nebraska, to recover a balance due the state upon taxes. The court held that the provisions of sections 29, 32 and 643 of the code cover two classes of cases, the one where the security is taken to protect the right of the public, and the other where it is taken to protect the rights of individuals--section 643 applying to private persons and section 32 to actions by the public. In Ryan v. State Bank, the Ohio case is cited, and it is said: "On the trial of a joint action against the principal and sureties on an official bond, the judgment may be against any number of the defendants, as the testimony warrants. But several actions on such bond can not be maintained." The case of Auker v. Adams & Ford, supra, was decided by the supreme court of Ohio in 1873; Albertson v. State was decided in 1879, and Ryan v. State Bank was decided in 1880.

At the time these actions were brought, the statute of this state required joint bonds to be executed by public officers, and joint action brought upon the bonds could, therefore, alone be maintained. In 1881, however, the legislature of this state enacted an entirely new act with reference to the subject of official bonds, section 3, chapter 10 of which is as follows:

"All official bonds of county * * * officers must be in form, joint and several, and made payable to the county in which the officer giving the same shall be elected or appointed, in such penalty and with such conditions as required by this act, or the law creating or regulating the duties of the office."

The plaintiff in error contends that, since this act did not expressly repeal or amend section 643 of the code, the provisions of that section are still in effect, and that, while the form of the bond is required to be joint and several, yet, since no additional rights have been given to private persons to sue upon an official bond in their own name than those prescribed by section 643, no action can be maintained other than a joint action against all the obligors to the bond.

The sections of the code cited by the plaintiff in error are substantially the same as those contained in the first Ohio code adopted in 1853. Before the enactment of this code, an action upon a bond under the common law could only be brought by the obligee. The object of these provisions was in accord with the general line and purpose of the reformed procedure, which was to simplify and modify the technicalities of the common law procedure and furnish a more simple and speedy remedy to litigants. The provisions, that all actions should be brought by the real party in interest and that any person injured by neglect of duty of an officer might bring an action in his own name upon the bond, were intended to supersede the necessity of suing upon the bond in the name of the obligee. As is held in Aucker v. Adams & Ford, supra, these provisions, while allowing a suit to be brought by a private person in his own name upon an official bond, did not change the character of the contract entered into by the sureties from a joint contract to a several contract, and, consequently, a joint action had to be brought upon the joint bond.

Are the provisions of section 643 exclusive? Mr. Kinkead in his work on Code Pleading (vol. 1, sec. 346), speaking of the Ohio code, says, "The correct construction to be placed upon section 4,993 of the code is believed to be that, in all cases where an individual has suffered an injury by the...