Guernsey v. Tuthill

• Decision Date: 02 March 1900
• Citation: 82 N.W. 190,12 S.D. 584
• Parties: GUERNSEY v. TUTHILL et al.
• Court: South Dakota Supreme Court

82 N.W. 190

12 S.D. 584

GUERNSEY v. TUTHILL et al.

Supreme Court of South Dakota

March 2, 1900

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by O. E. Guernsey against John W. Tuthill and others. There was a judgment for plaintiff, and defendants appeal from an order denying a new trial. Affirmed.

Bailey & Vorhees and Aikens & Judge, for appellants. A. B. Kittredge and Robertson & Dougherty, for respondent.

CORSON J.

This is an action against the sureties of Chelsea W. Hubbard, as sheriff of Minnehaha county, on his official bond. A verdict was rendered in favor of the plaintiff, and from the order overruling the motion for a new trial the defendants appeal to this court. It was conceded that Chelsea W. Hubbard was the duly-elected sheriff of Minnehaha county; that the defendants were sureties upon his official bond; that the bond was in the usual form, executed to the county of Minnehaha, and was duly approved by the county commissioners of said county, and properly recorded. The appellants ask for a reversal of the order upon five grounds: (1) For the reason that an individual cannot maintain an action upon a sheriff's bond in his individual capacity; (2) for the reason that under the evidence in this case the acts complained of were done colore officii, and not virtute officii, and that appellants are therefore not liable; (3) for the reason that the court erred in admitting the evidence of the witness Crisp, to whom the oath as a witness was administered by the circuit judge, such judge not being authorized by statute to administer an oath; (4) for the reason that the court erred in allowing the alleged appointment of Tufts, by whom the property was actually taken, as a dequty sheriff, to be introduced in evidence; (5) for the reason that no demand was made upon the sheriff for the return of the property before the commencement of the action.

The first ground relied upon is disposed of by this court in Hollister v. Hubbard, 78 N.W. 949, in which this court held that an action upon a sheriff's bond may be brought in the name of the real party in interest.

In support of the second ground, appellants contend that there was no evidence showing that Galbraith and Tufts, the two persons who claimed to be acting as deputies of the sheriff in taking the property, had in their possession at the time any legal process under which they were acting. The evidence upon this point is that Swan Person, who was defendant in an action of the Plano Manufacturing Company against Swan Person and J. A. Cooley, in which the property is alleged to have been taken, received from one of the deputy sheriffs papers purporting to be copies of a summons, affidavit, and notice in claim and delivery and undertaking in the action aforesaid. These papers, Person testifies, he delivered to his attorney, Henry Robertson, and Robertson corroborates this statement. Galbraith, deputy sheriff, testifies "We took some grain on the O. E. Guernsey farm. Swan Person was living on that farm at that time. I could not remember how much grain was taken. Papers were served upon Mr. Person that day by Ed Tufts. I was present there at the time. We hauled the grain down and put it in my granary. Q. You had some writ of some kind or other,--you or Mr Tufts,--didn't you? A. Yes, sir." This question was objected to as not being the best evidence, and as seeking by parol to prove the contents of a written instrument. Objection was overruled, and the defendant excepted. We think it was properly admitted.

The clerk, W. J. Crisp, was called and examined as a witness on the part of the plaintiff, and he testified that there were no papers on file in the case of the Plano Manufacturing Company against Person and Cooley. It is contended on the part of the respondent that, having proved that there were no papers on file in the said action, it was competent to prove the contents of the original papers by copies, and that Exhibit B supplied this proof. We are of the opinion that the respondent is right in his contention. Not finding the papers in the proper office, Exhibit B furnished proper secondary evidence of their existence and contents. In claim and delivery the law makes it the duty of the officer, when making service, to serve upon the defendant in the action a copy of the affidavit, notice, and undertaking, by delivering the same to him personally if he can be found. Section 4975 Comp. Laws. The court will not presume that any person would be guilty of the high crime of making out, and serving upon a party from whose possession he takes personal property, fictitious copies of papers purporting to be held by him, and under which the property is taken. We are of the opinion, therefore, that the court very properly admitted Exhibit B, as tending to prove that the officers acted under legal process in seizing the property claimed in the action of the Plano Manufacturing Company against Person and Cooley, and such evidence was prima facie proof of that fact. Undoubtedly, as claimed by appellants, in order to render these defendants liable for the property taken, it must appear that the officers had in their hands process issued by competent authority, and that the property alleged to have been taken was taken under such process. In other words, the property must have been taken virtute officii. And, as before stated, copies of the affidavit, notice and undertaking, and the summons, delivered by the officers to one of the defendants in the action, should, in the absence of the original papers from the proper office, be held as prima facie proof of the existence of such original papers, and that the officers were acting thereunder at the time the property was taken. It might have been otherwise if the law did not specifically require the service of copies upon the defendant at the time the property is taken.

If, therefore, Galbraith and Tufts were deputy sheriffs, and had in their hands the proper papers in the case of the Plano Manufacturing Company against Person and Cooley, and as such officers took the property charged to have been taken in that action, their acts would clearly bind the sheriff and his sureties, the defendants herein.

Whether the sureties would be liable for acts done colore officii, it is not necessary here to decide, but that they are liable for acts done virtute officii is well settled by the authorities. In the case of Gerber v. Ackley, 37 Wis. 43, much relied upon by the appellants, it does not appear that the marshal, for whose acts his sureties were sought to be held liable, had in his hands any writ or process under which he was acting. It was not averred in the complaint in that action that the marshal had a writ of replevin under which he seized the property, so as to give his act an official character; but he claimed to have process, not that process had been delivered to him, which he proceeded to execute in a manner contrary to his official duty. The court in that case says: "In order to show that Ludington [the marshal] violated some duty resting upon him as a marshal, it must appear that he was acting under process, and not claiming to act in the execution of...