Fire Association of Philadelphia v. Ruby

• Decision Date: 21 June 1899
• Docket Number: 10600
• Citation: 79 N.W. 723,58 Neb. 730
• Parties: FIRE ASSOCIATION OF PHILADELPHIA v. JAMES A. RUBY ET AL
• Court: Nebraska Supreme Court

79 N.W. 723

58 Neb. 730

FIRE ASSOCIATION OF PHILADELPHIA v. JAMES A. RUBY ET AL

No. 10600

Supreme Court of Nebraska

June 21, 1899

ERROR from the district court of Phelps county.Tried below before BEALL, J. Reversed in part.

Judgment as to sureties affirmed, but as to the defendant Ruby reversed.

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

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

OPINION

NORVAL, J.

For the second time this cause has made its appearance in this court, the former decision being reported in 49 Neb. 584.The action was upon the official bond of the defendantJ. A. Ruby, as sheriff of Phelps county, to recover the sum of $ 435, which it is alleged came into the hands of Ruby as sheriff, as the proceeds of the sale of certain real estate under a decree of foreclosure, and which he had neglected and refused to pay the plaintiff.Upon the first trial the main matter interposed by the officer as a defense was that he had paid the money to the clerk of the district court for the use of the plaintiff, which fact on the former hearing this court held constituted no defense, as it was the duty of a sheriff to pay the proceeds of sale derived from the sale of lands, under a decree of foreclosure, directly to the persons entitled thereto under the decree, unless it is otherwise ordered.Subsequent to the entry of the judgment of reversal new pleadings were filed, and the cause was again tried, resulting in a judgment in favor of the defendants.Plaintiff prosecutes error.

Before reviewing the assignments of error we will consider a proposition urged by the defendants, namely, that the amended petition of the plaintiff upon which the cause was tried does not state a cause of action, because the approval of the bond upon which the action was brought is not alleged.The only averments in the pleading relative to the matter are that the defendant Ruby "was duly elected and qualified as sheriff of Phelps county, Nebraska, for the term commencing January 1, 1890; that, being required by law to give bonds for the faithful performance of his duties, said J. A. Ruby as principal, and the other defendants therein as sureties, entered into a bond in the sum of $ 10,000, 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."It will be observed that there is no allegation that the bond was ever approved by any officer or board, nor are facts averred from which the inference can be drawn that the bond was approved.It is averred that defendants"entered into a bond," which is equivalent to an allegation that they signed the instrument declared on and not that it had been approved.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; but the pleading contains no such averment, or a state of facts of like import.It is not even alleged that the bond in question was ever filed in the office of the county clerk of Phelps county, or that it was ever presented for approval to the county board.To create a liability against the defendant sureties it must appear that the bond was filed...