Dishneau v. Newton

• Citation: 91 Wis. 199,64 N.W. 879
• Parties: DISHNEAU v. NEWTON ET AL.
• Decision Date: 22 October 1895
• Court: Wisconsin Supreme Court

91 Wis. 199

64 N.W. 879

DISHNEAU

v.NEWTON ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by Clara Dishneau against L. D. Newton and others, sureties on the official bond of Daniel Kennedy, sheriff of Douglas county. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.Reed, Grace & Reed and P. H. Perkins, for appellants.

Murphy & Bundy, for respondent.

MARSHALL, J.

This is an action against the sureties on a sheriff's bond. The pleader intended to set out a cause of action for a breach of the bond in that the sheriff's deputy, under and by virtue of a writ of attachment duly issued out of the circuit court in and for Douglas county against the property of Edward Dishneau and A. H. Thompson, and placed in his hands to execute, levied upon and took six horses belonging to plaintiff, of the value of $1,000, and converted the same to his own use. The complaint alleges that the sheriff died subsequent to the alleged conversion. Defendants demurred to the complaint on the ground of a defect of parties defendant, in that the administrator of the estate of deceased sheriff was not joined as a defendant. Section 721, Rev. St., provides that “every sheriff shall be responsible for every misconduct or default in office of any undersheriff, jailer and deputy during the term of his office, and after death, resignation or removal from office of such sheriff, as well as before; an action for such default or misconduct may be prosecuted against such sheriff and his sureties on his official bond, or against the executor and administrator of such sheriff.” Under this section the sheriff and his bondsmen are liable for the wrongful act of his deputy in levying on the property of the plaintiff under the writ of attachment against the property of others (Sprague v. Brown, 40 Wis. 612;Bishop v. McGillis, 80 Wis. 575, 50 N. W. 779), and after death, as well as before. An action lies against the sheriff and such bondsmen during the former's lifetime, and after his death against his executor or administrator. But, independent of the statute, in the case of such misconduct on the part of the sheriff's deputy, the principal is liable (Cotton v. Marsh, 3 Wis. 221; Wats. Sher. 27; Saunderson v. Baker, 3 Wils. 309; Murfree, Sher. 20, 59a); and, to the extent of the penalty in the bond, the liability of the sheriff's sureties for such official misconduct is coextensive with the liability of the principal, and, in case of the death of the principal, the law in regard to the bringing of actions against surviving joint obligors applies (Sherman v. Kreul, 42 Wis. 33;Voorhis v. Child's Ex'r, 17 N. Y. 354;Pope v. Cole, 55 N. Y. 124). The objection that there is a defect of parties defendant is not well taken.

Objection is taken to the complaint that it does not state facts sufficient to constitute a cause of action, in that no demand for a return of the property is alleged. No such demand was necessary. The sheriff and his deputies, in seizing property, must know that the property taken belongs to the person named in the writ, and, if the property of another is seized as that of such a person, such other is not required to give notice to the officer, and make demand for its return, before suing for its recovery, but may sue at once for the illegal seizure. Macias v. Lorio (La.) 6 South. 538;Hopkins v. Swenson (Minn.) 42 N. W. 1062;Vaughn v. Fisher, 32 Mo. App. 29;Hanchett v. Williams, 24 Ill. App. 56.

Further objection is taken to the complaint that it does not state facts sufficient to constitute a cause of...