Feller v. Gates

• Decision Date: 27 January 1902
• Citation: 67 P. 416,40 Or. 543
• Parties: FELLER v. GATES et al.
• Court: Oregon Supreme Court

67 P. 416

40 Or. 543

FELLER v. GATES et al.

Supreme Court of Oregon

January 27, 1902

Appeal from circuit court, Marion county; Geo. H. Burnett, Judge.

Action of conversion by Francis Feller against John H. Gates and others. From a judgment in favor of certain defendants, the plaintiff appeals. Affirmed.

This action was commenced in March, 1900, to recover from a constable and the sureties on his official undertaking the sum of $126.40, alleged to have been received by virtue of his office and converted to his own use. The complaint alleges, in substance: That the defendant John H. Gates was duly elected constable of the district of Woodburn. Marion county, Or., for a term of two years, beginning on the first Monday in July, 1898, and that prior thereto he took the prescribed oath of office, and filed an undertaking, with his codefendants, W. Corby and L.W. Guiss, as sureties conditioned that if he should not faithfully execute the trust imposed upon him as said constable, and pay over according to law all moneys that might come into his hands by virtue of his office, they, or either of them, would pay the state of Oregon the sum of $1,000, which undertaking having been duly approved, Gates entered upon the discharge of the duties of his office, and was at the commencement of this action constable of said district. That Angie L. Feller having commenced an action in the justice's court of said district against the plaintiff herein and others, secured a judgment therein November 21, 1899, for the sum of $116.40 and, an execution having been issued thereon, it was delivered to said constable, who, by virtue of his office and in pursuance of said writ, threatened to collect said sum from this plaintiff. That in order to stay said execution and prevent further costs thereon, and to gain time to take and perfect an appeal from said judgment, plaintiff herein paid Gates the sum demanded in said writ, and $10 claimed by him as costs thereon, which sum was received in lieu of an undertaking on appeal, to be returned if plaintiff herein should, within the time prescribed by law, serve and file a notice of appeal from said judgment, and execute and file a proper undertaking therefor; said agreement being as follows: "In the Justice's Court for Woodburn District, Marion County, Oregon. Angie L. Feller, Plaintiff, vs. W.F. Feller, Francis Feller, and Henry Bock, Defendant. Received of Francis Feller $126 40/100 cash in lieu of an undertaking on appeal in the above-entitled court and cause, and to stay execution in judgment against defendants above named until said cause is fully determined upon appeal in the circuit court of Marion county. It being understood that said money is not to be applied upon or towards the payment of said judgment, and that said money will be returned to Francis Feller upon his filing with the justice of the above-entitled court a sufficient undertaking, and making service of notice of appeal on plaintiff in said cause within the statutory time. Dated Nov. 28, 1899. J.H. Gates, Constable for Woodburn District, Marion County, Oregon. Witness: F.G. Eby." That, within the time prescribed by law, plaintiff served and filed a proper notice of appeal, and executed and filed a suitable undertaking therefor, fully complying with all the conditions of said deposit, and on January 29, 1900, the circuit court for Marion county, having jurisdiction of the cause and parties, reversed said judgment so rendered by said justice's court. That on January 10, 1900, plaintiff demanded of Gates said sum of $126.40, but he, refusing to pay any part thereof, wrongfully converted the same to his own use, and that on February 2, 1900, upon a proper application therefor, plaintiff secured permission to begin this action, wherefore he demands judgment against said constable and his sureties for the sum of $126.40. Gates having answered, judgment was given against him for that sum, but Corby and Guiss demurred to the complaint on the grounds (1) that they were improper parties; (2) that the complaint does not show any act done by Gates in discharging his official duty or by virtue of his office, and is insufficient to charge them as sureties; and (3) that the complaint does not state facts sufficient to constitute a cause of action,--which demurrer was sustained, and, plaintiff refusing to plead further, the action was dismissed as to them, and he appeals.

Carson & Adams, for appellant.

H.J. Bigger, J.C. Johnson, and Grant Corby, for respondents.

MOORE J. (after stating the facts).

It is contended by plaintiff's counsel that Gates received said sum of $126.40 in his official capacity as constable, and not having repaid it upon plaintiff's demand, the sureties on his official undertaking are liable for his conversion thereof, and hence the court erred in sustaining the demurrer to the complaint and in dismissing the action. "The sureties of a sheriff or constable," says Mr. Brandt in his work on Suretyship and Guaranty (2d Ed., § 566), "are liable for his acts in seizing property which are done virtute officii, but whether or not they are liable for his acts done colore officii is a matter concerning which there is great conflict of authority." In People v. Schuyler, 4 N.Y. 173, Mr. Justice Pratt, in defining these terms, and explaining when the sureties...