Huffman v. Koppelkom

• Decision Date: 09 April 1879
• Citation: 1 N.W. 243,8 Neb. 344
• Parties: LEMUEL A. HUFFMAN, PLAINTIFF IN ERROR, v. AUGUST KOPPELKOM ET AL., DEFENDANTS IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 344

1 N.W. 243

LEMUEL A. HUFFMAN, PLAINTIFF IN ERROR,

v.AUGUST KOPPELKOM ET AL., DEFENDANTS IN ERROR.

Supreme Court of Nebraska.

Filed April 9, 1879.

Error from Dodge County.

Marshall & Sterril, for plaintiff in error.

Gray & Marlow, for defendants in error.

LAKE, J.

--The action below was brought against the principal and sureties in the official bond of August Koppelkom, sheriff of Dodge County. A general demurrer to the petition was sustained, and the case is brought to this court for review by petition in error. In support of the demurrer, it is urged--

First, That no action can be sustained upon this bond, for the reason that the obligee named therein is the State of Nebraska, when it should have been Dodge County. “All bonds by county and precinct officers, shall be given to the county in which said officers are elected respectively.” Sec. 5, ch. 6, Gen. Stats. But this objection cannot be sustained. The obligee in an official bond is not necessarily, nor usually, the party interested therein in actions upon it. The bond being really for the use and benefit of whosoever is injured in consequence of the unfaithful performance of duty by the officer, the obligee is really but a nominal party. And, whatever may be the name of this nominal party, the action under our practice must be in the name of the real party in interest, although not mentioned in the bond.

As a protection to parties interested in official sureties, it is wisely provided in section ten of the same chapter of the statutes, that “no official bond shall be rendered void by reason of any informality or irregularity in its execution,” etc. We are of the opinion that the mistake in this bond, of naming the state instead of the county, as the obligee, falls within the operation of this provision of the law, and is cured by it.

Second, The second objection to this petition, and the one most relied on in the argument, is, that an action can be maintained on an official bond, only for injuries done virtute officii, and not for acts done colore officii merely. And so we believe the law to be, according to the best authorities. But, admitting the law to be as claimed by counsel for the defendants, still we think the petition states a cause of action. It is true, that by one allegation the pleader says, the act complained of was done by the sheriff, “under color of his said office,” but on examination of the petition, we find facts alleged which show most positively...