Fire Association of Philadelphia v. Ruby

Decision Date02 May 1900
Docket Number10,600
Citation82 N.W. 629,60 Neb. 216
CourtNebraska Supreme Court

ERROR to the district court for Phelps county. Tried below before BEALL, J. Reversed.

REHEARING of case reported in 58 Neb. 730.


Dryden & Main and G. Norberg, for plaintiff in error.

S. A Dravo, Rhea Bros. & Manatt, C. H. Roberts and C. St. Clair contra.

HOLCOMB J. NORVAL, C. J. concurring.



An opinion in this case was filed June 21, 1899, and is reported in 58 Neb. 730. The case has also once prior thereto been before this court. Fire Ass'n of Philadelphia v. Ruby, 49 Neb. 584, 68 N.W. 939.

A rehearing has been allowed on the application of the plaintiff in error, thereby requiring a re-examination of one of the questions involved. All questions in the case have heretofore been disposed of to our entire satisfaction, save the one of the alleged insufficiency of the petition to support a judgment against the sureties on the official bond of the defendant Ruby, as sheriff of the county where the action was commenced. We deem it, therefore, unnecessary to consider any other point to which our attention has been called, than this one.

In the former opinion, in the first paragraph of the syllabus, it was held that "in an action on the official bond of a sheriff, the petition should disclose the execution and approval of the bond, or facts showing a waiver of the approval of the bond, or facts which estop the sureties from urging its non-approval." Fire Ass'n of Philadelphia v. Ruby, supra. Because of the want of an averment covering the point mentioned in the syllabus quoted as to approval, the petition was deemed insufficient, and a judgment dismissing the action as to the sureties affirmed.

The petition under consideration alleges, "that the defendant, J. A. Ruby, was duly elected and qualified as sheriff of Phelps county, Nebraska, for the term commencing January 1st, 1890; that being required by law to give bond for the faithful performance of his duties, said J. A. Ruby as principal, and the other defendants herein as sureties, entered into a bond in the sum of ten thousand dollars as required by law for the faithful performance of his duties as such sheriff. A copy of said bond is hereto attached, marked 'Exhibit A,' and made a part hereof. That during the term for which said Ruby was elected so as aforesaid, to-wit: on the 15th day of September, 1890, in the performance of official duties as sheriff of said county, he," etc. the allegations quoted being followed by a statement of the acts complained of.

The petition was not attacked in the trial court, either by motion or demurrer. In their answers, the defendants allege that "said amended petition does not state facts sufficient to constitute a cause of action." An objection was entered against the introduction of any evidence because of the alleged insufficiency of the petition, which was overruled and the case proceeded to verdict and judgment on the issues presented by the pleadings. If the petition states a cause of action against the sureties on the sheriff's bond, all other questions having heretofore been determined adversely to the defendants, the judgment of the lower court must be reversed, and the cause remanded for a new trial.

The provisions of the Code of Civil Procedure as to the pleadings, as well as in all other respects, are to receive a liberal construction, to the end that justice may be administered to parties litigant. Sec. 1, Code Civil Procedure; Kepley v. Irwin, 14 Neb. 300, 15 N.W. 719.

It has frequently been held by this court that where a petition is not attacked by motion or demurrer, but objections for the first time are raised to the introduction of any evidence because of its alleged insufficiency, and the case has passed to trial on the issues formed, this court will give such pleading a liberal construction, to the end that the same may be upheld if possible. Peterson v. Hopewell, 55 Neb. 670, 76 N.W. 451; Norfolk Beet-Sugar Co. v. Hight, 56 Neb. 162, 76 N.W. 566. We regard the rule as wholesome and salutary, and one to be given effect wherever applicable. Of the same import are the holdings of the courts of last resort of other states. Mills v. Vickers, 50 P. 976; Whitbeck v. Sees, 73 N.W. 915.

In the former opinion of this court, by NORVAL, present C. J. it is said, p. 731: "Had the plaintiff alleged that the defendants executed the bond, it might include, or cover, the performance of every act essential to the making and approving of the bond." We assume this to be a correct expression of the law as to pleadings founded upon official bonds of the character under consideration, and the proposition is supported by both reason and authority.

Bouvier thus defines the word "execute": "The term is frequently used in law; as, to execute a deed, which means to make a deed, including especially signing, sealing and delivery." Anderson's Law Dictionary defines the word "execute" as follows: "In strict legal understanding, when said of a deed or bond, always means to sign, seal and deliver." Under each definition, it will be noted, every act essential to a complete making and delivery of the instrument is included in the word "execute." Robert v. Good, 36 N.Y. 408; Prindle v. Caruthers, 15 N.Y. 425; Clark v. State, 125 Ind. 1, 24 N.E. 744.

Reasoning from the hypothesis given, we will examine the petition in the case at bar. As has been heretofore noted, the petition does not in terms allege the making, that is, the signing of the bond, or its approval, filing or delivery. Nor does it allege by direct words the execution of the bond, which doubtless would comprehend all essential acts necessary to make it a valid and binding obligation on the signers thereof. What is alleged in this respect is, that the defendant Ruby, in qualifying, was required to give bond for the faithful performance of his duties, and that he as principal, and the other defendants as sureties, "entered into" a bond as required by law for the faithful performance of his duties as such sheriff, a copy of the bond sued on being attached to, and made a part of, the petition.

If from the language used, it may fairly be inferred that all acts necessary to constitute a full and complete execution of the bond, including such intermediary steps as are essential to its validity and effectiveness, are alleged, then, as in the hypothetical statement, a good cause of action is stated by the petition. The only words used from which this deduction may be drawn are contained in the allegation that the defendants "entered into" the bond mentioned. The term "entered into" is of common use in legal phraseology, has a well defined meaning, and is frequently found in statutes, opinions of courts, and legal publications generally. Ordinarily, it is equivalent to the phrase "to become bound; or obligated by a bond, recognizance, contract," etc. In the Century Dictionary the words "To enter into recognizances" are defined thus: "[In law] to become bound under a penalty, by a written obligation before a court of record, to do a specific act." Other lexicographers give substantially the same definition. In the statutes of Nebraska the words "entered into" appear to be used interchangeably with, and as equivalent to, the word "execute." Cobbey's Statutes, 1891, secs. 243, 5005, 5071,...

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