Moore v. McKinley
| Decision Date | 16 January 1883 |
| Citation | 14 N.W. 768,60 Iowa 367 |
| Parties | MOORE v. MCKINLEY ET AL., EX'RS, ET AL |
| Court | Iowa Supreme Court |
Appeal from Mahaska Circuit Court.
ACTION UPON A BOND. The plaintiff at the time of the acts complained of was the clerk of the District and Circuit Courts of Mahaska county, and the defendant, D. H. Le Suer, was his deputy, and one Rhinehart was surety upon Le Suer's bond. Rhinehart has since died testate, and the defendants, John M McKinley and J. W. Smith, are executors of his will. The plaintiff alleges that La Suer acting as deputy clerk approved a stay bond, whereby execution was stayed upon a judgment obtained by one Sellew against one Henry Myers & Co.; that in approving the stay bond, La Suer accepted, as surety thereon, one Henry Stafford, who was at the time and has since remained insolvent; that Henry Myers & Co. were good at the time the stay bond was approved, but became insolvent before the stay expired and have remained so, and the judgment stayed has become uncollectible; that La Suer was guilty of negligence in the approval of the bond, and, by reason of such negligence, Sellew obtained judgment against this plaintiff for the amount of the judgment stayed, and interest, and that judgment, with costs, the plaintiff has paid. The defendants pleaded a general denial and several other defenses. There was a trial without a jury, and judgment was rendered for the plaintiff. The defendants McKinley and Smith, appeal.
AFFIRMED.
Williams & McMillen and John F. Lacy, for appellants.
M. E Cutts, for appellees.
I.
The appellants pleaded among other things the statute of limitations. They insist that the evidence shows that the cause of action, if any, accrued more than three years prior to the commencement of the action, and is therefore barred. Whether a cause of action accrued to the plaintiff before he paid Sellew, we need not determine. It is certain that a cause of action did not accrue to him until a cause of action accrued against him, and if a cause of action did not accrue against him until within three years prior to the commencement of this action, then the cause of action accruing to him is not barred. In Steel & Johnson v. Bryant et al., 49 Iowa 116, a question arose as to when a cause of action accrued against a clerk of a court for accepting an insufficient stay bond, and it was held that it accrued at the expiration of the stay. The appellants insist that, while it may be true that in that case the court could not properly have held that it accrued sooner, a cause of action in fact accrues when the judgment debtor becomes insolvent, and that the decision in Steel & Johnson v. Bryant can be sustained only upon the ground that it was not shown when the judgment debtor became insolvent. In the case at bar it is shown when the judgment debtor became insolvent, and it is shown that it was more than three years prior to the commencement of the action. But we think the case of Steel & Johnson v. Bryant is decisive of the point in question in the case at bar. This is indicated very clearly by the reasoning upon which the decision is based. Mr. Justice SEEVERS, in the opinion, said: "As no right of action against the surety existed until the expiration of one year, we think that none accrued against the clerk for negligence in accepting the bond until that time." That this reasoning is correct, appears from the fact that it was not certain until the expiration of the stay that the judgment would not be paid at the expiration. The judgment debtor, though having become insolvent during the stay, might be solvent at the expiration, and, though remaining insolvent, he or his surety might pay the judgment.
Having determined that no cause of action accrues against the clerk until the expiration of the stay, and that no cause of action accrues to the clerk sooner than a cause of action accrues against him, there remains only to be said on this point that the evidence shows that the stay did not expire until within three years prior to the commencement of the action, and it follows that the cause of action is not barred.
II. The appellants insist that the bond is not sufficient in form to bind their testate, Rhinehart. The point made is that his name does not appear in the body of the bond. But there is something more than Rhinehart's signature to indicate that he intended to bind himself. The bond is drawn in the plural and recites that "we * * * * are held and firmly bound." This, to our mind, is sufficient.
III. The appellants contend that they are not liable to the action, because, as against them as executors, the plaintiff at best has a mere claim which, if duly sworn to and filed, would be subject to be allowed as a claim against the estate and dealt with accordingly, and cannot properly be put in judgment.
It cannot be denied that the plaintiff's claim is a claim against the estate. It may be that the plaintiff could have proceeded simply under section 2408 of the Code. But the plaintiff's claim grows out of a contract in which the defendants' testate became jointly liable with another, and when a claim arises out of a joint contract, and one of the contractors is dead, an action may be brought against the survivor, and there may be joined with him as defendant the representatives of the deceased. Code, § 2550. This action is brought against La Suer as well as appellants. Possibly the petition should properly be sworn to, but failure to swear to a claim against an estate is not fatal to it. Goodrich v. Conrad, 24 Iowa 254; Wile v. Wright, 32 Iowa 451. The appellants indeed do not rely upon a want of verification. They insist that the claim was not filed against the estate, and that the filing cannot be dispensed with, even where an action is brought under section 2550 of the Code.
It does not distinctly appear in what court administration is pending, but it seems to be conceded in the appellants' argument that it is pending in the Circuit Court of Mahaska county, being the same court in which the action was brought. The filing of the petition in that court against the executors is, in our opinion, a sufficient filing of the claim against the estate. In McCrary v. Deming, 38 Iowa 527, BECK, J., said: The appellants' objection as to a want of filing it appears to us is not well taken.
IV. It does not appear that the bond was...
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