Maxwell ex rel. Maxwell v. Nieft

• Decision Date: 02 March 1942
• Docket Number: Ag. No. 6.
• Citation: 313 Ill.App. 354,40 N.E.2d 554
• Parties: MAXWELL, FOR USE OF MAXWELL ET AL. v. NIEFT ET AL.
• Court: United States Appellate Court of Illinois

313 Ill.App. 354

40 N.E.2d 554

MAXWELL, FOR USE OF MAXWELL ET AL.

v.NIEFT ET AL.

Ag. No. 6.

Appellate Court of Illinois, Fourth District.

March 2, 1942.

Appeal from Circuit Court, Madison County; D. H. Mudge, Judge.

Action by L. A. Maxwell, for the Use of Clara E. Maxwell and others, against Walter J. Nieft and J. B. Frederick on an indemnifying bond. From a judgment for plaintiffs, defendant J. B. Frederick appeals.

Affirmed.

J. P. Streuber, of Alton, for appellant.

Wilbur A. Trares, of Edwardsville, for appellees.

STONE, Presiding Justice.

The question involved in this case is: “May the sureties on the official bond of a constable who have been sued and made to pay a judgment based upon an unlawful act of said constable, sue and recover from the sureties on an indemnifying bond taken by said constable to protect him from damages in and about the doing of said unlawful act”?

This question seems to be entirely new in this state as far as adjudicated cases are concerned. Counsel have cited none in their briefs, nor have we been able to find any case as authority or precedent.

Briefly stated, the facts are substantially as follows: L. A. Maxwell was elected constable of the Township of Wood River in Madison County, Illinois, on the 17th day of April, 1933. He qualified by entering into bond in the sum of $2,000 with Clara E. Maxwell, E. S. Hendricks and August Dietiker as sureties. On the 7th day of February, 1933, Nieft Brothers, doing business under the name of the City Bakery, obtained a judgment against Gus Libas and Nick Koste in the sum of $184.95. Execution was issued against said defendants and delivered to said Maxwell for service. On June 5, 1933, said Maxwell, Constable, levied on all the money and stock of merchandise consisting of beer, wines, cigars and so forth, in a place of business at 16 Wood River Ave., Wood River, Illinois, as the property of said defendants Libas and Koste. Maxwell, Constable, apparently having a reasonable doubt as to the ownership of the goods on which he had levied, required from Nieft Brothers an indemnifying bond. Said bond was given, executed by Walter J. Nieft and J. B. Frederick in the sum of $400. This bond is the instrument sued on in this case.

Upon receipt of said indemnifying bond Maxwell on the 5th day of June, 1933, levied on the aforesaid goods, wares and merchandise, and sold said property to satisfy said judgment on the 17th day of June, 1933. In the meantime one George Costopolis served notice in writing upon said constable that he, Costopolis, claimed said property as his own. A trial of the right of property was afterwards had before a Justice of the Peace, and upon appeal to the Circuit Court of Madison County judgment was rendered by said court, on the 22d day of March, 1934, holding that George Costopolis was the owner of the property so levied upon. No appeal was ever taken from this judgment. It thereby became final.

Costopolis being unable to recover his property brought suit on the official bond of Maxwell, Constable. Maxwell was not served, but a trial was had against the sureties on said bond, Clara Maxwell, T. S. Hendricks and August Dietiker. This suit was in the Circuit Court of Madison. A judgment was rendered by said court on the 28th day of August, 1937, for $1,142.41 and costs. This judgment was appealed to the Appellate Court, and there affirmed. People for the use, etc., v. Maxwell et al. 296 Ill.App. 651,15 N.Y.S.2d 883. The sureties on the official bond,--that is, the defendants against whom the judgment for $1,142.41 was assessed, paid said judgment on January 5, 1939. These sureties on said official bond thereafter brought suit on the indemnifying bond, making Walter J. Nieft and J. B. Frederick parties defendant. Trial was had in the Circuit Court of Madison and judgment was rendered against the said defendants in the sum of $400. Defendant-appellant J. B. Frederick alone brought this appeal.

Appellant in his answer raises the question of the statute of limitations against the plaintiffs in this suit and urges here that said cause was barred by said statute at the time the action was instituted. With this we are unable to agree, for whether judged from the time that judgment was rendered against appellees or when they were required to pay the amount of the judgment, the accrual of the action, if action they have, accrued well within the five-year statute of limitations, Ill.Rev.Stat. 1941, c. 83, § 16. The statute of limitations affects only the remedy and does not commence to run until the party to be barred has a right to invoke the aid of the court to enforce his remedy. Staninger v. Tabor, 103 Ill.App. 330;Suppiger v. Gruaz, 137 Ill. 216, 27 N.E. 22;Nevitt v. Woodburn, 160 Ill. 203, 43 N.E. 385,52 Am.St.Rep. 315;Otter Creek Lumber Co. v. McElwee, 37 Ill.App. 285. Certainly the plaintiffs could not have sued until they were injured, and as said above, the injury to them accrued well within the five-year statute of limitations.

Counsel for appellant contends that the facts in this case bring it within the holdings of a class of cases of which Searles v. City of Flora, 225 Ill. 167, 80 N.E. 98, and Vial v. Norwich Fire Ins. Society, 257 Ill. 355, 356, 100 N.E. 929, 44 L.R.A.,N.S., 317, Ann.Cas.1914A, 1141, are types. An examination of the first case discloses that this was a suit on a bond to the City of...