Cassady v. Sholtz, for Use and Benefit of Edwards

• Decision Date: 29 June 1936
• Parties: CASSADY et al. v. SHOLTZ, Governor, for Use and Benefit of EDWARDS.
• Court: Florida Supreme Court

169 So. 487

124 Fla. 718

CASSADY et al. v. SHOLTZ, Governor, for Use and Benefit of EDWARDS.

Florida Supreme Court, Division A.

June 29, 1936

Rehearing Denied July 28, 1936.

Error to Circuit Court, Lake County; J. C. B. Koonce, Judge.

Action by David Sholtz, as Governor of the State of Florida, for the use and benefit of C. M. Edwards, against B. A. Cassady and another. To review a judgment for plaintiff, defendants bring error.

Affirmed.

On Petition for Rehearing.

COUNSEL Duncan, Hamlin & Duncan, and John S. Lavin, all of Tavares, for plaintiffs in error.

Wells &amp Hall and J. B. Gaines, all of Leesburg, for defendant in error.

OPINION

PER CURIAM.

An action at law was begun in the name of Doyle E. Carlton, as Governor of the State of Florida, for the use and benefit of C. M. Edwards, against B. A. Cassady, sheriff of Lake county and the American Surety Company of New York, as surety, upon the official bond of the said sheriff.

The following facts, in substance, were agreed to by counsel for both parties:

C. M Edwards, on January 14, 1929, had issued a writ of attachment to aid in the foreclosure of a chattel mortgage held by and being foreclosed by C. M. Edwards, against W. H Harris, B. A. Cassady, sheriff of Lake county at that time, and a defendant in this cause of action, levied the writ of attachment on certain personal property of the defendant Harris, which the sheriff took into his custody. On February 13, 1929, final decree in favor of plaintiff was entered in that foreclosure suit, which was affirmed on appeal in Harris v. Edwards, 99 Fla. 477, 126 So. 493.

On February 2, 1931, the special master appointed by the court in the case of Edwards v. Harris, demanded of B. A. Cassady, sheriff of Lake county, that said sheriff surrender and deliver unto him for the purpose of sale, in accordance with the final decree, the property theretofore attached, but the sheriff 'wholly failed, neglected and refused then, theretofore and thereafter to deliver said property or any part thereof to said Special Master.'

The declaration, in the instant case, set up the execution of the sheriff's official bond by which B. A. Cassady, sheriff, and the American Surety Company of New York jointly and severally obligated themselves to be bound by John W. Martin, as Governor of the State of Florida, and his successors in office in an amount in excess of the sum demanded by plaintiff. The bond was conditioned upon the diligent and faithful performance by B. A. Cassady of all of the duties of his said office as prescribed by law as such sheriff. The declaration alleged, in effect, that the said sheriff had not diligently and faithfully performed all of the duties required of him by law as such sheriff, because of his failure, as hereinabove detailed, to deliver the attached property in the case of Edwards v. Harris to the special master. A copy of the official bond was made an exhibit to the declaration.

The defendants filed their joint and several demurrer to the declaration substantially upon the following grounds, among others:

(1) Said declaration states no cause of action against these defendants or either of them; (2) it affirmatively appears that C. M. Edwards, the real plaintiff, has no legal right to sue upon the bond referred to in said declaration; (3) it affirmatively appears that said real plaintiff cannot bring this action against these defendants, or either of them, in the manner and form alleged; (5) it affirmatively appears that the alleged violation of the conditions of the bond sued upon did not give the real or use plaintiff the right to sue upon said bond, nor the right to use the name of said nominal plaintiff.

The court, after having heard the argument of counsel, overruled the defendants' demurrer and allowed them until the next rule day in which to plead to the declaration.

Thereafter, the defendants filed certain pleas. After several sets of pleas were stricken, and the last set of pleas held good, counsel for both parties thereupon agreed to a certain stipulated set of facts, substantially as set forth above; and submitted the case to the trial judge for decision upon the pleadings and the stipulation of facts.

The trial court, after argument of counsel, found for the plaintiff and assessed his damages at $1,860; and entered final judgment in favor of plaintiff for that amount plus costs of the court.

From this final judgment, defendants took writ of error.

The only error assigned on this writ of error is the ruling of the trial court in overruling the defendants' demurrer to the declaration.

So the sole question to be decided is whether a sheriff's official bond is given for the protection of individuals, or whether it is given solely for the protection of the public.

An official bond binds the sheriff no farther than he would be liable without it. The sole object of the bond is to secure the faithful performance of official duty. And no official act can be considered a breach of the condition of the bond to faithfully execute the duties of the office unless it would, without a bond, amount to a breach of official duty. See Studebaker v. Johnson, 41 Kan. 326, 21 P. 271, 13 Am.St.Rep. 287; Forsythe v. Ellis, 4 J. J. Marsh. (Ky.) 298, 20 Am.Dec. 218.

'Generally speaking, the purpose of an official bond is to provide indemnity against malfeasance and misbehavior in public office, the misuse of powers belonging to the office, and the assumption, under guise of official action, of powers not belonging to it. All acts so performed, though unlawful or wrongful, are official acts within the meaning of an undertaking that an officer shall faithfully and impartially discharge the duties of his office; and as such may be reasonably considered to have been within the contemplation of the sureties at...