Lynch v. Burgess

• Decision Date: 17 January 1929
• Docket Number: 1527
• Citation: 273 P. 691,40 Wyo. 30
• Parties: LYNCH v. BURGESS [*]
• Court: Wyoming Supreme Court

273 P. 691

40 Wyo. 30

LYNCH v. BURGESS ^[*]

No. 1527

Supreme Court of Wyoming

January 17, 1929

Rehearing denied March 12, 1929.

ERROR to District Court, Big Horn County; EDGAR H. FOURT, Judge.

Action by Mary Lynch against A. C. Burgess as sheriff of Big Horn County, and another. Judgment of dismissal, and plaintiff brings error.

Reversed and Remanded.

Thomas M. Hyde and C. A. Zaring, both of Basin, for plaintiff in error.

This is an action against a sheriff and his surety for illegal search. The court sustained separate demurrers to the petition; the pretended criminal complaint and affidavit for search warrant failed to describe the kind and quantity of intoxicating liquors to be seized, and the receptacle in which they were contained, which omission made the search warrant invalid; the search was conducted by the defendant sheriff in a rude and insulting manner, and so greatly frightened and excited the plaintiff, that she suffered physical pain and great humiliation and distress. The petition states a cause of action. Buckley v Beaulieu, 104 Mo. 56, 22 L. R. A. (N. S.) 819; State v. Court, 225 P. 1000-1002; State v. Wills, 24 A. L. R. 1398; State ex rel. King v. Dist. Court, 224 P. 862; Jackson v. Harris, 236 P. 254.

Thomas M. McKinney, Ray E. Lee and Samuel M. Lee, attorneys for defendant in error.

Plaintiff in error is not a party to the bond alleged in her petition and therefore cannot maintain this action. Howard v. U.S. 184 U.S. 676, 46 L.Ed. 754; Carr, et al. v. City of Knoxville, etc., 234 S.W. 328; Alexander v. Ison, 33 S.E. 357; Cushing v. Lickert, 112 N.W. 616; United States Fidelity & Guaranty Co. v. Crittenden, 131 S.W. 232. The action must be brought in the name of the state. Sec. 1391 C. S. Actions on bonds must be brought in the manner prescribed by Statute. 35 Cyc. 1971. State v. Rader, et al., 125 P. 726; Board v. Young, 3 Wyo. 684; People v. Dolan, 5 Wyo. 189. The petition fails to allege non-payment of damages claimed. If damages were paid by the sheriff, it would release the surety. State v. Phares, 24 W.Va. 657. An officer acting under an invalid search warrant, is not acting under color of or by virtue of his office, and his sureties are not liable for his illegal acts. Chandler v. Rutherford, 101 F. 774; State v. Wade, 40 A. 104; Lowe v. City, 44 P. 198; State v. Conover, 28 N. J. L. 224; State v. Bagby, 67 N.E. 519; Fidelity Co. v. White, 272 S.W. 902; Catlin v. U. S. F. & G. Co., 125 S.W. 297; Gomez v. Scanlon, 102 P. 12. An arrest under a void warrant must be regarded as an arrest without a warrant at all. In order to hold the surety liable, the action must be brought upon the bond contract. 35 Cyc. 1962. This action was apparently brought to recover on an alleged tort. The petition does not come under the foregoing rules, for stating a cause of action. Ferrat v. Amadson, 163 P. 112; Ghiradelli v. Bourland, 32 Cal. 385. The failure of the petition to show that it was the duty of the sheriff to make the search complained of, renders the petition insufficient. People for use of Tomplin v. Beech, sheriff, 113 P. 513; State ex rel. Simmerman v. Schaper, 134 S.W. 671.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

These proceedings in error were instituted by the plaintiff in error, Mary M. Lynch--hereinafter referred to as the "plaintiff"--to review a judgment of the District Court of Big Horn County, dismissing her petition in the action upon the separate demurrers thereto of the defendants A. C. Burgess, as sheriff of Big Horn County, Wyoming, and National Surety Company of New York--hereinafter generally mentioned as the "defendants"--and upon the refusal of plaintiff to amend her petition or plead further. It is assigned as error that these demurrers should not have been sustained and the action dismissed.

Plaintiff's petition, in outline, is as follows: It alleges that the defendant Burgess was, at all the times referred to therein, the sheriff of Big Horn County, Wyoming, and the defendant National Surety Company of New York was, at such times, a New York corporation, engaged in the business of furnishing official bonds in Wyoming; that on January 5, 1925, before he entered upon his duties as sheriff, Burgess gave bond to the people of the State of Wyoming in the penal sum of $ 4,000, he being the principal and the corporation aforesaid being the surety thereon; that the obligation was duly approved by the county commissioners of Big Horn County. A copy of the bond was attached to the pleading and made a part thereof, the condition of the instrument being:

"Now Therefore, if the said A. C. Burgess shall well and truly perform the duties of his office according to law without fear, favor or partiality, and shall strictly account for and pay over all moneys and surrender all books, papers, vouchers and property which may come into his possession by virtue of his said office and which should be so paid over or surrendered, then this obligation shall be null and void; otherwise to remain in full force and effect. This bond written for the term of two years, commencing on the 5th day of January, A. D. 1925, and terminating on the 1st Monday in January, A. D. 1927."

The petition also averred that on December 27, 1926, the said Burgess and another, filed before a justice of the peace of Big Horn County, Wyoming, a criminal complaint and affidavits and thereby obtained the issuance of a search warrant to said Burgess, as sheriff of said county, for the search of certain hotel premises situated on designated lots in the town of Greybull in said county, copies of the complaint and affidavits being also affixed to the pleading and made a part thereof. It was then charged that the complaint, affidavits and search warrant were invalid and defective in sundry specified particulars.

The petition further alleged that on the date last mentioned the two front rooms on the first floor and the entire second floor of said hotel building were employed in the hotel business, and that certain rooms immediately back of the two front rooms on the first floor were occupied by plaintiff as her home; that on said day, acting under said search warrant and under color and by virtue of his office as sheriff of Big Horn County, and in violation of the terms of his bond, Burgess, with nine other persons, including his deputy and others called by him to assist, made a search of plaintiff's premises aforesaid for some twenty-two hours, occupying the premises over night, imprisoning plaintiff, forbidding her advice of counsel and subjecting her to other mistreatment, the petition setting forth with considerable particularity what was done by the searching party in the course of the search made. It was finally charged that by reason of these acts, the plaintiff was frightened and "rendered extremely nervous and ill" etc., for which she asked compensation in a named amount.

The defendants separately demurred to plaintiff's petition, for alleged failure to state a cause of action, the demurrer of the surety company setting out the additional ground that the plaintiff had no legal capacity to sue. The action taken by the court below upon the situation thus presented has heretofore been indicated.

It is argued that the action should have been brought in the name of the State of Wyoming, to the use of the plaintiff, and that the litigation cannot be maintained in its present form. We are cited to Section 1391, W. C. S. 1920, which reads:

"Every official bond of any county officer, where not otherwise provided by law, shall be payable to the State of Wyoming, and an action shall lie thereon to the use of any party aggrieved, in the name of the people."

It is said that this section precludes the plaintiff from suing in her own name, regardless of the provisions of Sections 5580 and 5581, W. C. S. 1920, the first of which sections provides, among other things, that "an action must be prosecuted in the name of the real party in interest," and the latter directs that "the rule prescribed in the preceding section may be so applied when a person forfeits his bond or renders his sureties liable, that any person injured thereby, or who is by law entitled to the benefit of his security, may bring an action thereon in his own name against the person and his sureties, to recover the amount to which he is entitled by reason of the delinquency, which action may be prosecuted on a certified copy of the bond." To these contentions we cannot assent.

The author of Bates New Pleading, Vol. 2, page 1155, in discussing Section 11242 of the Ohio Code, identical with our Section 5581 as quoted, supra, says:

"The Ohio reports are full of cases by individuals on the official bonds of public officers, but without comment on the point."

While Madden's edition of Whittaker's Annotated Ohio Civil Code, at page 96, in the first note under Section 11242, remarks that suits on official bonds must be in the name of the state, unless the interests of private persons only are affected. In Bollin v. Blythe, (C. C.) 46 F. 181, this language was used:

"The second question raised on demurrer is, can the plaintiff, assignee of the witness' certificates maintain an action in his own name on the marshal's bond? The demurrer admits the fact that the money has been received by the marshal in his official capacity for these witnesses, and has not been paid by him. The claim is based on a chose in action, and, like any other chose in action, can be assigned. It is not a claim against the government, and therefore does not come within the prohibition of Section 3477 of the Revised Statutes. (31 U.S.C. A. Sec. 203). It is a claim against the marshal. Being assignable, the assignee can maintain an action upon it. ...