People, to Use of Tritch v. Cramer

• Decision Date: 07 November 1890
• Citation: 25 P. 302,15 Colo. 155
• Parties: PEOPLE, to Use of TRITCH, v. CRAMER et al.
• Court: Colorado Supreme Court

25 P. 302

15 Colo. 155

PEOPLE, to Use of TRITCH, v. CRAMER et al.

Supreme Court of Colorado

November 7, 1890

Error to district court, Arapahoe county.

The complaint averred, among other matters, the following 'That in June, 1886, Tritch commenced his action upon a promissory note against the Bailey Reduction Company to recover the sum of $18,461.27; that at the same time a writ of attachment was at his instance duly issued and placed in the hands of defendant Cramer, the sheriff, for levy; that the sheriff was instructed to attach thereunder all the estate of the company within the county of Arapahoe; that on the same day, or the next, by direction of Tritch, a description of certain specified real estate of the company which was then wholly unincumbered, was procured from the office of the clerk and recorder and placed in the hands of the sheriff with instructions to levy the attachment thereon at once; that the company possessed no other realty; that the sheriff negligently failed to make said levy upon the real estate mentioned, or upon anything else save some personal property, until the month of September following, at which time, Tritch having procured his judgment, his execution and attachment were together levied upon the premises referred to; that in the mean time, on the 3d day of August thirty-four days after the attachment had been placed in the sheriff's hands, certain other judgments, aggregating the sum of $7,491, were obtained against the defendant company by one Atterbury and others, and transcripts thereof were at once recorded in pursuance of the statute; that these judgments therefore created prior, and hence superior, liens upon the land in question; that in December, 1886, the property having been duly advertised was sold under Tritch's execution, and purchased by him for the sum of $18,000; that this amount was more than its real value, but was bid by Tritch in order to secure the payment of his entire judgment through the anticipated redemption by other creditors; that on the 7th of February, 1887, executions under the judgments of Atterbury et al. were levied upon the property, and it was sold, being purchased by the judgment creditors, for the amount of their claims with interest; that in September, 1887, Tritch received his sheriff's deed in accordance with his certificate of purchase, and thus became the sole owner of the premises clear of all incumbrances except the liens created by the said judgments of August 3d, and sales thereunder; and that 'it was necessary for Tritch to purchase and acquire the certificates of purchase issued by the coroner to the other said judgment creditors, which he did on the said 2d of September, at and for the face value thereof, to-wit, $7,865.55.' The action is against the sheriff and his bondsmen, upon his official bond, to recover the amount which Tritch was required to pay through the negligence, as it is alleged, of this official in failing to levy the writ of attachment until after liens had been acquired by other creditors as aforesaid. To the complaint, a demurrer was duly interposed, upon two grounds: First, the failure to plead a cause of action; and, second, a bar by the statute of limitations. This demurrer was sustained, and final judgment rendered dismissing the action. To review that judgment, the present writ of error was sued out.for their face value. Held, that it stated a cause of action.

Patterson & Thomas, for plaintiffs in error.

L. B. France, for defendants in error.

HELM, J., ( after stating the facts as above.)

Both parties agree that the court below sustained the demurrer in this case upon the ground that the action was barred by the statute of limitations. This is the sole question argued by counsel for plaintiff in error, and the principal subject discussed by opposing counsel. Its determination rests upon a construction of the following statute: 'All actions against sheriffs and coroners, upon any liability incurred by them, by the doing of any act in their official capacity, or by the omission of any official duty, except for escapes shall be brought within one year after the cause of action shall have accrued, and not after that period.' Section 2166, Gen. St. The precise force and effect to be given this statute is, as we shall presently see, a question of no little difficulty. The provision is evidently framed in the interest of the officers mentioned, and their official bondsmen. Its purpose is to prevent annoyance and injustice through the prosecution against them of stale demands predicated upon official neglect or other misconduct. This purpose is eminently wise; but, in our judgment, the statute should, if possible, be so construed as that, while the persons designated are fairly protected, litigants may not be made thereby to suffer grievous and remediless wrong. Our determination of the present controversy obviously depends upon the view we shall adopt as to the precise point of time when Tritch's cause of action accrued. Was it when the alleged official non-ieasance occurred, or was it when the consequential injury complained of had followed? When a contract, express or implied, is violated, actual injury is in law an immediate sequence, and suit may at once be instituted.

The damages may be much or little, but the cause of action is complete. If the precise extent of the injury be not...