Luce v. Foster

• Citation: 42 Neb. 818,60 N.W. 1027
• Parties: LUCE ET AL. v. FOSTER ET AL.
• Decision Date: 20 November 1894
• Court: Supreme Court of Nebraska

42 Neb. 818

60 N.W. 1027

LUCE ET AL.

v.FOSTER ET AL.

Supreme Court of Nebraska.

Nov. 20, 1894.

Syllabus by the Court.

1. Under our statute an attorney at law should not become a surety upon a bond in a legal proceeding in the district in which he lives, and if he signs such a bond the clerk should not approve it, but if it be approved the surety is nevertheless bound thereby. Tessier v. Crowley, 22 N. W. 422, 17 Neb. 207, followed.

2. Under the Code of Procedure, as well as at common law, the allegata et probata must agree. A party will not be permitted to plead one cause of action and upon the trial rely upon proof establishing a different cause.

3. An attorney at law, by virtue merely of his employment as such to prosecute an action, has no authority to execute, on behalf of his client, a bond to indemnify the sheriff from the consequences of levying upon property claimed by a stranger, the client residing and being at the place where the events took place, and there being full opportunity for prompt communication between client and attorney.

4. An attorney in such a case has no authority to bind his client by an agreement that the proceeds of execution shall be by the sheriff paid to the surety on the indemnity bond, to be held as security against liability thereon.

5. The bond on its face showing that the client's name was signed by the attorney, and not by the client, both the surety and the officer were bound to know that it was done without authority, and under such circumstances the surety must be held to have executed the undertaking absolutely, and is not released because there was no authorized signature by the principal.

6. Our statute having abolished private seals, it abolished at the same time their incidents, and an instrument in the form of a bond must be now deemed a simple contract, not conclusively importing a consideration.

7. Want of consideration for such a bond, or the illegality thereof, may be shown by parol.

8. It is the duty of a sheriff, under an ordinary writ of execution, to pay the proceeds directly to the parties entitled, and not return the money into court.

9. Therefore it is not illegal, nor against public policy, for the sheriff, by the authority and with the consent of the plaintiff to the writ, to agree to pay the proceeds to a third person; but, in order that such agreement shall be lawful, it must be made with the consent or by the authority of the person entitled to receive the money.

10. Where an indivisible promise is founded upon two considerations, one of which is legal and the other illegal, the promise cannot be enforced.

11. Therefore, where a surety executes an indemnity bond to a sheriff, the sheriff agreeing to pay the proceeds of the execution to the surety, to be held as security against liability on the bond, neither the principal nor any one authorized by him signing such instrument, held, that the surety was not liable on the bond.

12. A judgment will not be reversed because of conflicting instructions when that instruction least favorable to the party complaining was more favorable than the law warrants. In such case the conflict in the instructions and the error therein are not prejudicial.

Error to district court, Harlan county; Gaslin, Judge.

Action by Clarence A. Luce and others against Blanche L. Foster and others on an indemnity bond given by defendants to Charles H. Brown, sheriff, who assigned the same to plaintiffs. None of the defendants except L. B. McManus were served or appeared. There was a judgment for defendants, and plaintiffs bring error. Affirmed.

C. C. Flansburg, for plaintiffs in error.

W. S. Morlan, for defendants in error.

IRVINE, C.

The plaintiffs in error were the plaintiffs in the district court, and in their petition they allege that one Charles H. Brown had for a certain term been sheriff of Harlan county; that plaintiffs were sureties on his official bond; that while Brown was sheriff the defendant Blanche L. Foster caused an execution to be issued on a judgment in her favor against certain persons named; that in consideration of Brown's proceeding to sell certain property levied upon under such execution and claimed by Peter Roth, a stranger to the writ, the said Blanche L. Foster, together with the defendants John Dawson and L. B. McManus, executed to Brown a bond of indemnity conditioned to pay him the penal sum thereof if the property so levied upon was not the property of the judgment debtors, or either of them; that in consideration of said bond Brown sold the property; that Roth began an action against him in replevin, and recovered judgment; that Brown was insolvent, and unable to pay said judgment, and Roth brought suit against the plaintiffs, and recovered a judgment, which they were compelled to pay; that Brown had assigned the indemnity bond to the plaintiffs, and that the defendants had been notified of the pendency of the proceedings alleged, and required to defend the same, and to hold Brown harmless; but they had failed so to do. The record shows neither service upon nor appearance by the defendants other than McManus. He filed an answer, and the questions litigated were those raised between him and the plaintiffs. His answer set up several defenses, or facts alleged to constitute defenses. The assignments of error and the argument in this court relate to only two of these, and they alone will be considered. One of these was that the indemnity bond sued upon was never signed by Blanche L. Foster, the principal, and that her attorneys had no authority to sign the same,--a fact alleged not to have been known to McManus when he signed. The other defense, involving questions presented here, was that Brown agreed with McManus, with the consent of Blanche L. Foster's attorneys, that in consideration of McManus signing the bond the proceeds of the sale of all the property levied upon should be paid to McManus, to be by him held until the end of all litigation in regard to the ownership of the property; and, if anything should be recovered on the bond if sued upon, McManus should use the money so received to discharge such liability; that Brown had sold the property for $1,347, had wrongfully paid to the attorneys for Mrs. Foster $940 thereof, and had converted the remainder to his own use, and had never paid any of the proceeds of the sale to McManus. It may be here remarked that the answer also alleged that the indemnity bond was invalid, for that McManus' cosurety, Dawson, was an attorney at law, and therefore not a proper surety, under section 14, c. 10, Comp. St., providing that no practicing attorney shall be taken as surety on any bond in any legal proceeding in the district in which he may reside. We do not understand that this defense is now insisted upon, but it may be safe to remark that it is not well taken. A practicing attorney should not sign a bond in a legal proceeding as surety. If he sign such a bond, the clerk should refuse to approve it. But if he do sign the bond, and if it be approved, he is estopped from alleging its invalidity, and it may be enforced both against him and the other parties thereto. Tessier v. Crowley, 17 Neb. 207, 22 N. W. 422. There was a verdict and judgment in favor of McManus, to reverse which plaintiffs assign seven errors. A consideration of the assignment that the verdict was not sustained by the evidence necessarily involves a determination of all the questions arising under the special assignments. A consideration of the sufficiency of the evidence therefore disposes of all questions presented, and the special assignments will not be noticed by themselves. There is one assignment relating to the admission of evidence which would not fall within the foregoing remark, but it is not discussed in the briefs, and will therefore be deemed to be waived.

The evidence is somewhat conflicting uponthe minor points, but not upon the principal facts. It shows, or tends to show, that Brown, having, as sheriff, received an execution on a judgment in favor of Blanche L. Foster against certain persons, he was about to levy on property found in the possession of the judgment debtors. He was informed that the property belonged to Peter Roth. He took an inventory thereof, but did not complete his levy, and refused to proceed unless indemnified. The attorneys of Mrs. Foster were John Dawson and T. Judson Ferguson. Mr. Dawson asked McManus to sign the bond, and McManus offered to do so if the proceeds of sale were turned over to him to hold as security until the litigation was ended. They then went to Mr. Brown, and the same statements were made. An understanding was reached that such disposition should be made of the money. The bond was then signed as follows: “Blanche L. Foster, by T. Judson Ferguson, her Atty. John Dawson. L. B. McManus.” The sheriff completed his levy, and was proceeding to sell the property, when Roth commenced the replevin suit. He failed to give bond, and the action proceeded as one for damages, resulting in a judgment against Brown in favor of Roth. In the meantime Brown had sold the property under the execution, Ferguson and Dawson bidding in a portion thereof, paying no cash therefor, with the purpose of their bids being credited upon the judgment. The remainder of the money was paid to Dawson, and deposited in the bank of which McManus was president. It is uncertain in what manner this payment was made, but the deposit was certainly to the credit of Dawson, the money was checked out by him, and it was not paid to McManus, or placed in any wise under his control. Roth, being unable to realize on his judgment in the replevin suit, sued the plaintiffs on the sheriff's official bond, and recovered judgment, which the plaintiffs paid.

It very clearly appears that Mrs. Foster, at the time the bond was given, lived in Alma, where the events took place; that Mr. Ferguson also lived there, and could have consulted her in regard to the bond, or any...