Disheroon v. Brock

• Decision Date: 22 October 1925
• Docket Number: 6 Div. 375
• Citation: 213 Ala. 637,105 So. 899
• Parties: DISHEROON et al. v. BROCK.
• Court: Alabama Supreme Court

105 So. 899

213 Ala. 637

DISHEROON et al. v. BROCK.

6 Div. 375

Supreme Court of Alabama

October 22, 1925

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Mary Brock against W.A. Disheroon and the Fidelity &amp Deposit Company of Maryland for damages for alleged wrongful trespass by defendant Disheroon, acting under color of his office as deputy sheriff, in searching plaintiff's residence and disturbing her property. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Frank S. White & Sons, E.C. Crow, and Thos. J. Judge, all of Birmingham, for appellants.

Harsh Harsh & Harsh, of Birmingham, for appellee.

SOMERVILLE J.

The official bond of the defendant Disheroon, under which his codefendant, the Fidelity & Deposit Company, is sought to he held liable as surety, is blank as to the date of its execution. Its condition is:

"That whereas the above bound W.A. Disheroon was duly ______ May 1st, 1922, to the office of regular deputy on the 1st day of May, 1922, for the term of one year from the 1st day of May, 1922, in precinct No. ______ in and for said county [Jefferson]. Now, if the said W.A. Disheroon shall faithfully perform and discharge all the duties of said office during his continuance therein, then the above obligation to be void, otherwise in full force and effect."

The bond is signed by principal and surety, and to the left of their signatures is the indorsement, "Taken and approved this 13 day of May, 1922, J.P. Stiles, Judge of Probate." It appears from other indorsements that the officer's oath of office was taken on May 10, 1922.

Defendants jointly objected to the admission of the bond in evidence assigning several grounds, only two of which seem to be now insisted upon: (1) That the bond appears to have been executed, or to have become effective, on May 13, 1922, and hence did not cover official misfeasances prior to that date; and (2) it does not show what kind of an officer Disheroon was, nor to what office the bond was referable.

There is, indeed, nothing upon the face of the bond, or of its indorsements to show that it was executed or became effective prior to the date of its approval--two days after the alleged misfeasance of the principal. In the editor's note to Cowden v. Trustees, 235 Ill. 604, 85 N.E. 924, 23 L.R.A. (N.S.) 131, 126 Am.St.Rep. 244, the general rule is stated, with copious citation of authorities:

"There can be no doubt of the general proposition of law that, in the absence of stipulations in the bond of a public officer making it retrospective, or of estoppel by reason of the principal's report or statement for the prior term, there can be no liability on the bond for default of the principal which occurred prior to the execution of the bond."

See, as especially in point, the case of Grand Haven v. U.S., etc., Co., 128 Mich. 106, 87 N.W. 104, 92 Am.St.Rep. 446. Pertinent, also, are our cases of Townsend v. Everett, 4 Ala. 607, and McPhillips v. McGrath, 117 Ala. 549, 568, 23 So. 721.

In the instant case the question of the surety's liability depends upon the construction to be placed upon the language of the bond, and where, as here, the language of the undertaking refers to a definite term of office, and guarantees the faithful discharge of the duties of the office by the principal "during his continuance therein," we think that a fair construction, under the rule contra proferentem, intends and requires the extension of liability to the entire term. McMullen v. Building, etc., Ass'n, 64 Kan. 298, 67 P. 892, 56 L.R.A. 924, 91 Am.St.Rep. 236; Inhabitants of Hudson v. Miles, 185 Mass. 582, 71 N.E. 63, 102 Am.St.Rep. 370, 374.

The operation of the bond, at least as for common-law liability, was not dependent upon its filing or approval in accordance with statutory requirements; and "where a bond is given by a public official and is required by statute, and such official is permitted to assume the performance of the duties of his office on the strength of the furnishing of such a bond, in such case the surety furnishing the bond is estopped to set up *** such defenses as want of consideration, lack of approval by proper authority, etc." The proposition, fully elaborated, has been enacted into statutory law. Code 1907, § 1501; Code 1923, § 2613; Frost's Law of Guaranty Ins. (2d Ed.) § 142. As that author observes:

"Where such statutes exist, they are probably to be regarded more in the light of a protection to the public rather than as a condition precedent to the attachment of liability on the part of the compensated surety." Id. § 141.

As to the second objection, it is clear that the surety cannot complain of its own omission to state in the bond that the deputy officer referred to was a deputy sheriff. That omission did not prevent the operation of the bond, as its signers intended, and parol evidence might properly show, as it did without dispute, that Disheroon's office was that of deputy sheriff.

It is hardly necessary to add that the bond here in question was authorized and required by section 3 of the act approved September 10, 1915 (Terry's Local Laws of Jefferson County, 338), which provides that such bonds shall be governed by the general laws relating to official bonds.

We conclude that this bond was properly admitted in evidence as...