Barton v. Shull

• Decision Date: 18 September 1901
• Docket Number: 11,901
• Citation: 87 N.W. 322,62 Neb. 570
• Parties: JOHN BARTON, SHERIFF, ET AL. v. HENRY B. SHULL, CORONER, ET AL
• Court: Nebraska Supreme Court

87 N.W. 322

62 Neb. 570

JOHN BARTON, SHERIFF, ET AL. v. HENRY B. SHULL, CORONER, ET AL

No. 11,901

Supreme Court of Nebraska

September 18, 1901

ERROR from the district court for Saline county. Tried below before STUBBS, J. Reversed.

REVERSED AND REMANDED.

Hastings & Hastings, for plaintiffs in error:

It is the duty of the jury in all cases to follow the instructions given them in charge by the court. Jewett v. Smart, 11 Iowa 505 [also Nebr. cases cited in opinion.]

Any other ruling would submit parties to the injustice of having their evidence and facts shaped to one view of the law by the trial court and then decided upon another without any opportunity to submit the facts and evidence bearing upon that view. Matthewson v. Burr, 6 Neb. 312; Cook v. Pickrel, 20 Neb. 433; Missouri P. R. Co. v Cassity, 44 Kan. 207, 24 P. 88; Hardin v. Sheuey, 40 Neb. 623, 43 Neb. 806.

Sureties did not justify as bail on arrest.

The fact that the juror Gavin was related to counsel is probably, not technical ground for challenge. Wood v Wood, 52 N.H. 422; Funk v. Ely, 45 Pa. 444.

Tibbets Bros., Morey & Anderson, also for plaintiffs in error.

Fayette I. Foss, A. S. Sands, J. D. Pope and B. V. Kohout, contra.

HOLCOMB, J. SULLIVAN, J., absent, not voting.

OPINION

HOLCOMB, J.

The plaintiffs in error, also plaintiffs below, began an action against the defendant, Henry B. Shull, as coroner, and the sureties on his official bond, for having negligently approved an insufficient undertaking in replevin in an action begun against John Barton as sheriff. The sheriff, defendant in the replevin action, had attached a certain stock of drugs and other merchandise kept therewith at the instance of the other plaintiffs in this action, who were creditors of a certain firm or copartnership doing business under the firm name and style of Foster & Ayres. The property was attached as belonging to the said copartnership or firm of Foster & Ayres. Thereafter the plaintiffs in the replevin action who were the father and mother, and father-in-law and mother-in-law respectively of the individual members of the said firm of Foster & Ayres, replevied the attached property as belonging to them, the coroner serving the replevin writ on the sheriff, taking the property by virtue thereof and delivering it to the said plaintiffs after taking and approving a bond in replevin to which objections were made and exceptions taken, as to the sufficiency of the sureties, by the sheriff, the defendant in this action.

The cause by proceedings in error has once before been brought to this court for consideration, the opinions disposing of the case being found in Shull v. Barton, 56 Neb. 716, 77 N.W. 132, and on rehearing in 58 Neb. 741. In the two opinions referred to will be found an extended discussion of the case and a decision on several points raised in the trial thereof. We will not undertake again to consider matters therein disposed of. The questions therein determined having once been decided will be followed as the law of the case.

It will be observed that the specific cause of action on which a right of recovery is based is the alleged failure of the coroner to have the sureties on the replevin bond justify as bail on arrest, after the defendant in the replevin action, and within the time provided by statute, had duly objected and excepted to the sufficiency of such sureties, they being, as alleged, of insufficient financial responsibility to respond to the obligations assumed by entering into the replevin undertaking. No attempt was made by the coroner to have the sureties justify, in the manner pointed out by statute, after objections had been made to their sufficiency, unless the taking by the coroner of an affidavit by each of the two sureties in the most general terms as to the value of the property of each above debts and exemptions and subject to execution can be regarded as an attempt at justification. Certainly it was no such justification as the statute requires, as has heretofore in this case been decided. The court instructed the jury, and we think properly, that under the evidence no legal justification as required by statute had been exacted by the coroner from the sureties after he was notified that they were objected to as insufficient, and that his liability to the plaintiffs in this action must be determined from the standpoint that no justification of the sureties had been required after due notice of exceptions to their sufficiency. On this point the jury were instructed as follows:

"13. It appears from the undisputed evidence that the replevin action alleged by plaintiffs was commenced by Foster & Co., that property was taken and an undertaking with Killer and Sarah Jane Custer taken by defendant Shull, that he was coroner and the other defendants his sureties on his official bond, that objection was made to the sufficiency of the sureties within twenty-four hours by plaintiff, and it does not appear that the sureties have ever justified as required by law; it also appears by undisputed evidence that plaintiff Barton recovered judgment against Foster and Co., as stated, that an execution was issued and returned by H. B. Shull coroner, unsatisfied.

"14. The statute as before stated, having provided that the coroner should be responsible for the sufficiency of the sureties until they justify in the manner stated, and it not appearing that they have ever done so, the only remaining questions are: first, were these sureties insufficient when this action was begun August 19th, 1893? 2nd, If they were at that time insufficient had sheriff Barton received the property back in such a way as to discharge the liability upon the bond?

"15. These two questions, gentlemen, are all that is left for your consideration. With regard to the first, if you believe from the evidence that the amount of the replevin judgment could not have been made by legal process in the state of Nebraska on August 19th, 1893, against Sarah Jane Custer and Henry Killer, then they were insufficient at that time. With regard to the second, if you believe from the evidence that the property was taken back, but immediately taken away by the same parties, or their grantees on another replevin action, and has not been returned nor paid for, nor in any manner recovered to the use of the plaintiffs, or any of them, that constitutes no defense to defendant's liability."

The jury having returned a verdict for the defendants upon which, after a motion for a new trial was overruled, judgment was rendered in their favor, it is assigned, as the principal ground of error calling for a reversal of the judgment, that the verdict is contrary to and unsupported by the evidence and is contrary to the instructions of the court. Without at the present time discussing the correctness of the instructions, the rule is, that it is the duty of the jury in all cases to follow the instructions given them by the court, whether correct or not; and if they fail to do so the verdict will be deemed to be contrary to law and should be set aside and a new trial ordered. The reasons for the rule are obvious; and any other would lead to endless confusion, sanction an utter disregard of the court's opinion of the law applicable to the pleadings and the evidence, and render its instructions entirely impotent except when willed otherwise by the jury. A refusal or failure to follow the instructions of the court is sufficient ground for setting aside a verdict and granting a new trial. Standiford v. Green, 54 Neb. 10, 74 N.W. 263; Esterly Harvesting Machine Co. v. Berg, 52 Neb. 147, 71 N.W. 952; Omaha & R. V. R. Co. v. Hall, 33 Neb. 229, 50 N.W. 10; Aultman v. Reams, 9 Neb. 487, 4 N.W. 81.

Assuming then, that the instructions heretofore quoted correctly presented to the jury the only question to be by them considered and determined, a brief examination and consideration of the evidence is required of us in ascertaining whether the verdict returned can be sustained under the evidence and the court's instructions. The evidence on the first trial, which we assume was quite similar to that submitted in the subsequent case, was reviewed at some length by Mr. Commissioner RAGAN, who wrote the opinion of the court first handed down, heretofore cited, 56 Neb. 716, and the conclusion there reached was that, entirely aside from the provisions of the Code requiring the sureties to justify when objected to, as bail on arrest, in order to relieve the approving officer from responsibility, the coroner, in taking and approving the sureties on the replevin undertaking, acted negligently, for which he was responsible in damages to the defendant for all loss sustained by reason of the insufficiency of such sureties; that the sureties were clearly insufficient and the officer acted negligently, for which an action would lie when he approved the replevin bond. Much stronger would be the reason for holding him responsible under the provisions of the statute referred to. On rehearing it was determined that the provisions for justification as bail on arrest were in force and operative and that the officer approving the replevin bond, in order to be relieved from responsibility, must comply with such provisions unless exceptions to the sufficiency of the sureties were waived by the defendant in the replevin action. 58 Neb. 741. By section 189 of the Code of Civil Procedure it is provided: "The defendant may, within twenty-four hours from the time the undertaking referred to in the preceding section is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must...