Barton v. Shull

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

62 Neb. 570

87 N.W. 322

BARTON, SHERIFF, ET AL.

v.SHULL, CORONER, ET AL.

Supreme Court of Nebraska.

Sept. 18, 1901.

Syllabus by the Court.

1. Questions raised and decided on former review of the same action held to be and followed as the law of the case.

2. 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 contrary to law, and should be set aside, and a new trial ordered.

3. When exceptions are taken to the sufficiency of sureties in a replevin undertaking within the time provided by the statute, and the sheriff or other officer approving the replevin undertaking fails to have the sureties justify as bail on arrest, he, unless such justification is waived, becomes thereby responsible on his official bond for the sufficiency of such sureties, not only when the replevin undertaking is approved, but also at the time the defendant in replevin is in a position to enforce a judgment rendered in his favor in the replevin action, or proceed against the sureties on the undertaking executed by them.

4. Evidence examined, and held not to support the verdict returned by the jury.

5. The verdict returned by the jury held to be contrary to the instructions of the court, and should have been set aside.

6. Where property levied upon under writs of attachment is taken from an officer by replevin proceedings, and after judgment in the attachment case the same property is levied upon and seized by the officer from whom replevied by virtue of an execution issued on the judgment, regaining possession of the same property under the execution, undiminished in value, constitutes a defense pro tanto in an action on the replevin undertaking, or in an action for taking insufficient sureties on the replevin bond, and the fact that the property is subsequently replevied by the plaintiffs in the first replevin action or their assignees will not render the defense unavailable.

7. Action of the trial court in granting a new trial on a former hearing held without error.

Error to district court, Saline county; Stubbs, Judge.

Action by John Barton, sheriff, and others, against Henry B. Shull, coroner, and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Hastings & Hastings, for plaintiffs in error.

F. I. Foss, A. S. Sands, and J. D. Pope, for defendants in error.

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 co-partnership doing business under the firm name and style of Foster & Ayers. The property was attached as belonging to the said co-partnership or firm of Foster & Ayers. 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 & Ayers, 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 that 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, 71 Am. St. Rep. 698, and on rehearing in 58 Neb. 742, 79 N. W. 732. 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 & 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? Second. 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 19, 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 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;Machine Co. v. Berg, 52 Neb. 147, 71 N. W. 952; Railroad 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, 77 N. W. 132, 71 Am. St. Rep. 698), 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;...