Dean v. Brannon

• Decision Date: 11 May 1925
• Docket Number: 24949
• Citation: 139 Miss. 312,104 So. 173
• Court: Mississippi Supreme Court
• Parties: DEAN et al. v. BRANNON. [*]

104 So. 173

139 Miss. 312

DEAN et al. v. BRANNON. ^[*]

No. 24949

Supreme Court of Mississippi

May 11, 1925

Division B

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Mrs. Edna Brannon against A. E. Dean and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Stevens & Heidelberg, for appellants.

I.

There were two defendants, one a resident householder of George county, Mississippi, and the other defendant being a foreign corporation without residence or domicile in the state of Mississippi. The statute fixing venue of actions of this kind is section 486, Hemingway's Code, section 707, Code of 1906.

It was the contention of the plaintiff in the lower court, and the lower court so held that in view of the fact that the defendant United States Fidelity & Guaranty Company was subject to suit wherever any of its agents might be found in the state of Mississippi, and the fact that an agent was found in Forrest county where the suit was filed, was not only sufficient to confer jurisdiction upon the circuit court of Forrest county, but was sufficient to prevent a change of venue on the application of the codefendant who was a resident of the state and who had a household and residence in George county.

We have been unable to find any decision from the supreme court of Mississippi directly in point. It seems to us, however, that the statute itself is plain and explicit in its terms. It says that if any defendant who is a resident citizen of this state is sued out of the county of his household and residence, the venue of the action on his application shall be changed to the county of his household and residence. There is no exception in the statute. There is no provision of law anywhere in Mississippi providing that if a defendant who is a resident citizen of the state be joined with a foreign corporation or a non-resident of the state, that he shall not be entitled to remove the venue of the cause to the county of his residence on his application, and so far as we have been able to find there is no decision in Mississippi so holding.

In the case at bar, the United States Fidelity & Guaranty Company the foreign corporation was not domiciled in Forrest county at all. It was not domiciled in the state of Mississippi. It was in law a citizen of the state of Maryland. Therefore this suit was filed and proceeded to judgment in a county where neither of the defendants was domiciled or resided. In this case, although the defendant Dean was a resident householder of George county and although he was sued in a county where neither he nor the codefendant was domiciled or resided, his application for a change of venue to the county of his residence and domicile was overruled, in utter violation of the statute quoted.

While there has been no decision by this court deciding the exact point at issue, there have been decisions of other states which throw considerable light on the question involved in this assignment of error. Barfield v. Southern Cotton Oil Co. et al. (S. C.), 69 S.E. 603; J. D. Hudgins &amp Brother v. Low et al., (Tex.), 94 So. 411; Fort Orange Paper Co. v. Risden et al. (N. J.), 41 A. 706; Ludington Exploration Co. et al. v. La Fortuna Gold & Silver Mining Co. et al. (Calif.), 88 P. 290.

We, therefore, submit that this case should be reversed and remanded with direction that the venue be changed to the circuit court of George county.

II.

REFUSAL OF THE COURT TO GRANT A PEREMPTORY INSTRUCTION ERROR. The uncontradicted evidence shows that Goff was neither a regular nor a special deputy sheriff, and therefore, neither the sheriff nor the surety on his bond was liable for his act in shooting the plaintiff. Even if the deputy sheriff had attempted to appoint Goff, his attempt to do so would have been utterly null and void under the holding of this court in Welch v. Jamison, 1 Howard 160, where it is held that the power to appoint a deputy sheriff is vested solely in the sheriff himself.

The uncontradicted evidence in this case shows that the sheriff Dean knew nothing about the proposed mission of Goff. Goff is the man who swore out the affidavit for the search warrant. Goff is the man to whom the search warrant was delivered, and Goff is the man who attempted to execute the search warrant, whether rightfully or wrongfully. The sheriff did not know that the affidavit for the search warrant had been made. He did not know that the search warrant had been issued. The search warrant had never been delivered to the sheriff or to his deputy, and, therefore, the sheriff cannot be held responsible for the act of Goff while attempting unlawfully to execute this search warrant.

The testimony does not establish even as against Dean himself, the fact that he appointed Goff as his deputy so that he would be responsible for the act of Goff. Much less would it be evidence as against the defendant Surety Company. The surety company did not appoint him; the surety company was not present when this so-called admission was made, and the surety company is not bound by the admission of the codefendant. So that this testimony, even if competent and of any probative value at all as against the defendant Dean, was not only not competent as against the defendant surety company but even when testified to, it established no fact as against the surety company.

This suit was for the breach of a contract. It was a suit on the official bond of the sheriff for a breach of the condition of that bond. It must be borne in mind that the rights and liabilities of the defendant, United States Fidelity & Guaranty Company, as surety on this bond, are rights and liabilities which grow out of a contract entered into by it, for a breach of which contract this suit is brought. The surety company assumed no responsibility for the conduct of the sheriff except such responsibility as is based upon and grows out of the contract signed by it. Let us, therefore, see for a moment what the surety company contracted to do when it promised to pay the state of Mississippi the four thousand dollars referred to in the bond. It contracted to guarantee the faithful performance of the duties of Dean as sheriff of George county. The statute requiring the sheriff to give a bond is section 3079, Hemingway's Code, section 4662, Code of 1906. The statute authorizing a suit on the sheriff's bond is section 3080, Hemingway's Code section 4663, Code of 1906.

If we concede for the sake of argument that the surety on the sheriff's bond could in any event be liable for the act of the deputy sheriff, then the question arises, what deputy sheriff, and how many deputy sheriffs? When the contract in question, the bond, was executed, the parties contracted with reference to what the law then provided for with reference to the appointment of deputies. Section 3081, Hemingway's Code section 4664, Code of 1906, provided the method by which deputies could be appointed by a sheriff. There are two kinds of deputies; one known as a regular deputy and the other as a special deputy. Regular deputies can only be appointed in writing, and before one enters upon the duties of the office, he must take and subscribe an oath, and the appointment with the certificate of the oath shall be filed and preserved in the office of the clerk of the board of supervisors. Section 3081, Hemingway's Code. Special deputies are those appointed to do a particular act only, as for instance the serving of a summons. In this event, the appointment to execute the particular process must likewise be in writing on the process. Section 3082, of Hemingway's Code, section 4665, Code of 1906, gives to the sheriff the same remedy and judgment against deputy sheriffs and the sureties upon the deputy sheriff's bonds as a creditor or other person has against the sheriff himself.

Under the provisions of chapter 122 of the Laws of 1920, the sheriff here had authority to appoint only one regular deputy. Therefore, if the surety contracted to be liable at all for the acts of a deputy sheriff when it signed the bond of A. E. Dean as sheriff of George county it contracted to be liable for the acts of only one deputy sheriff because the sheriff had authority to appoint only one deputy sheriff under the law. We, therefore, submit that in no event could there have been any recovery as against the surety on the bond because of the act of Goff even if there was a written appointment of him as deputy sheriff.

There is a reason for the position taken by us here, and a sound one. The statute provides that the sheriff shall have the same cause of action against the deputy sheriff and the surety on the deputy's bond, that others have against him. We have another statute which provides that in an action against a principal and a surety where judgment is recovered and the judgment paid by the surety, the surety becomes subrogated to the rights of the principal. So that when the surety company in this case signed its contract, even if it contracted to be liable for the acts of a deputy, it contracted knowing that if the deputy himself caused a breach of the sheriff's bond and suit was brought against the sheriff and judgment obtained against the sheriff and the judgment paid by the surety company, it would in turn be subrogated to the rights of the sheriff and could proceed against the deputy and the surety on the deputy's bond.

Chandler v. Rutherford, C. C. A. 8th Circuit, 101 F. 774, held that when a deputy United States Marshal assumed to act without warrant his act was not under color of office such as to make sureties liable. Brown v. Wallace (Tex.), 12 L. R A. (N. S.) 1019, held that a sheriff is not liable for the act of a deputy who shoots another while attempting to escape when the...