People v. Pacific Sur. Co.

• Decision Date: 02 May 1910
• Citation: 50 Colo. 273,109 P. 961
• Parties: PEOPLE, to Use of PURDY, v. PACIFIC SURETY CO. et al.
• Court: Colorado Supreme Court

109 P. 961

50 Colo. 273

PEOPLE, to Use of PURDY, v. PACIFIC SURETY CO. et al.

Supreme Court of Colorado

May 2, 1910

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Action by the People for the use of Edwin R. Purdy against the Pacific Surety Company and another. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

S. P Douthart, for plaintiff in error.

Bartels & Silverstein, for defendant in error Pacific Surety Company.

CAMPBELL J.

This is an action for damages against the sureties on a constable's bond for a breach of its condition that the constable 'shall well and faithfully discharge the duties' of his office. There had been a previous judgment therefor by plaintiff against the constable. The court sustained a general demurrer to the complaint and dismissed the action. A number of questions, some of substantive law others relating to matters of practice, are argued, whose determination is not necessary to a decision of the case. We therefore express no opinion concerning them. If, for our present purpose, it be conceded that the trial court was wrong in its decision upon them, still, if the complaint does not state a cause of action for any reason, even though such ground was not mentioned below, the judgment of dismissal must be affirmed, since the general objection may be raised at any time. The record does not, however, show upon what ground the ruling on the demurrer was based; but that it must be sustained we entertain no doubt, as the complaint wholly fails to state a cause of action, as will appear from the following discussion.

The bond is set out in haec verba in the complaint. No obligee is named therein. The general rule is that a bond must contain at least two parties, the obligor and the obligee, and a bond which does not contain the name of an obligee is void. There are some decisions holding that where a bond, with the name of the obligee left blank, is delivered by the obligor with authority to the person to whom it is delivered to insert the name of the obligee, it becomes a valid instrument when so perfected; but there are authorities to the contrary. That, however, is not this case. There appears to be no obligee at all and no authority was given to any one to insert the name of an obligee. Neither is there any language in the bond by which the obligors promised to pay anything, or to do anything. Indeed, in the obligatory part of the instrument, they do not bind themselves at all; there being no language of a binding character present. If the bond has been correctly copied into the complaint, it would, under some authorities, be deemed void. 5 Cyc. pp. 731-733; 4 Am. & Eng. Enc. of Law (2d Ed.) p. 645. If, however, it could be said that there is enough in the condition clause to show an intent upon the part of the obligors to make a promise of some kind to some indefinite person, and if it could be further said that it will be presumed that the intention was to make the body corporate, which the statute designates as the obligee in bonds of this character, the obligee in this instrument--and we discuss the point only that we may not be regarded either as holding it good or bad--still, upon other grounds, which we now proceed to consider, the complaint is fatally defective.

Omitting formal parts, it alleges that the constable (naming him), 'acting as constable aforesaid, in the line of his duty as such and under color and by virtue of his said official position and without any warrant or process of any kind or character against Edwin R. Purdy (the plaintiff), but claiming to have in his possession and to acting as constable under and by virtue of a writ or process issued against one Margaret Purdy by a justice of the peace * * * he (the said constable) forcibly broke and entered the residence of plaintiff * * * and while still acting as constable and under the claim and pretense of executing the writ or process hereinbefore named, * * * assaulted, beat, and bruised, * * * plaintiff, * * * knocked him down, * * * wrongfully and maliciously arrested and placed him in prison, * * * and falsely detained him * * * for several hours, * * * and as a part of the same transaction, willfully, maliciously, and without any authority of law, seized his furniture, * * * removed it from his residence, threw it in the street, * * * and destroyed a part of it; that all of the acts of the constable * * * were done while he was acting as constable in the line of his duty and under the claim of authority as aforesaid, and under the color and by virtue of said office, but in truth and in fact without any warrant or authority of law, and that the said acts were willfully and maliciously committed by the constable for the purpose of annoying, harassing, and injuring the person and property of the plaintiff, with the intention of insulting and abusing him and with a wanton and reckless disregard of his rights.'

Some authorities make a distinction between acts of a public officer done by virtue of his office, and acts done under color of his office. Such a distinction doubtless exists, but for our present purpose we predicate nothing upon it. That there is a very wide difference between wrongful acts of an officer done by virtue, or under color, of his office, on the one hand, and his mere wrongful personal or private acts, upon the other, is recognized by all authorities. For all these wrongful acts and conduct the officer himself is liable. Sureties upon his official bond have been held liable for acts of the former character, but not for the personal or private, wrongful acts of their principal. Bearing this in mind, let us analyze this complaint to see what acts of the officer are complained of. True, the complaint states that the acts in question were committed by the constable while acting as such, in the line his duty and under color and by virtue of his office. The allegation is immediately followed by the further statement that in beating, bruising, and imprisoning the plaintiff, and in injuring his real and personal property, the officer was acting 'without any warrant or process of any * * * character' against plaintiff. The extent to which the complaint goes with reference to any writ is that the constable was claiming to have in his possession, and to be acting as constable by virtue of, some writ or process issued by a justice of the peace against some other person. It is not stated what that writ or process is, or what it commanded the constable to do, if any there was. Neither does the pleading state that the constable broke and entered plaintiff's residence, or that it was necessary for him to do so, in executing the alleged writ, or that, in fact, he had a writ or ever executed it.

But the serious defect in this particular is that there is no allegation that any writ was ever issued by a justice of the peace, or delivered to the constable, which he was in the act of executing at the time of the assault. It is not sufficient, in a complaint of this kind, merely to allege that the officer claims or...