Hursey v. Marty
| Decision Date | 25 June 1895 |
| Docket Number | Nos. 9362 - (185).,s. 9362 - (185). |
| Citation | 61 Minn. 430 |
| Parties | WILMOT A. HURSEY v. ADAM MARTY, Sheriff, and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Nathan H. Chase, Comfort & Wilson, and M. H. Boutelle, for appellants.
James N. Castle, for respondent.
This was an action upon an official bond executed by defendant Marty as principal and the other defendants as sureties, conditioned that Marty should "well and faithfully in all things perform and execute the duties of sheriff according to law during his continuance in office, without fraud, deceit, or oppression." The complaint, which is unnecessarily long, is very far from being a model pleading, being quite prolix on immaterial matters, but very scant in its allegations of material facts. But, as there must be a reversal on points that go to the merits of the case, we will not consider those criticisms upon the sufficiency of the complaint, which, if well taken, can be cured by amendment.
The allegations of the complaint, so far as here material, are that, in an action in which the Finance Company of Pennsylvania was plaintiff and the plaintiff in the present action and two others, as copartners, were defendants, an attachment was issued, and placed in the hands of the defendant Marty as sheriff; that under the pretended authority of this attachment he levied on certain exempt property of the present plaintiff; that plaintiff notified the sheriff that this property was his individual, exempt property, and demanded a return of it, which the sheriff refused; that thereupon the plaintiff brought an action against Marty for damages for the wrongful taking of the property, in which, on a trial upon the merits, he recovered a verdict for $392 damages, upon which a judgment was rendered against the sheriff for $409.85 damages and costs.
The defendants, in their answer, admitted the official character of Marty; the issuance to him of the writ of attachment as stated in the complaint; that under the pretended authority of such writ, he, as sheriff, levied upon the property described in the complaint; that plaintiff notified Marty that the property was his individual, exempt property, and demanded a return of it; and that plaintiff subsequently brought an action against Marty, and obtained a verdict therein, as alleged in the complaint. The other allegations of the complaint were put in issue by either general or special denials. The court ordered judgment against the defendants on the pleadings, and the correctness of this ruling is the only question presented by this appeal.
The first proposition advanced by the defendants going to the merits of the case is that the seizure by a sheriff, upon a writ of attachment against one person, of the goods of another, is not a breach of the condition of his official bond for which his sureties are liable. While the principle involved may be the same, yet this is not the precise question presented by the record. The property seized did belong to one of the defendants in the writ, but, according to the complaint, was property upon which the sheriff had no right to levy, because it was exempt. While a contrary view has been maintained or received some support in the decisions of a few states, yet the great weight of authority is to the effect that the sureties upon the official bond of a sheriff or constable, conditioned for the faithful performance of the duties of his office, are liable for his taking the property of one person upon a writ directing him to take the property of another person; that such an act, although unlawful, is an act done by the officer in his official capacity, under color and by virtue of his office.
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