Rich v. Graybar Electric Co.

• Decision Date: 26 June 1935
• Docket Number: No. 1878-6615.,1878-6615.
• Citation: 84 S.W.2d 708
• Parties: RICH et al. v. GRAYBAR ELECTRIC CO.
• Court: Texas Supreme Court

Page 708

84 S.W.2d 708

RICH et al. v. GRAYBAR ELECTRIC CO.

No. 1878-6615.

Commission of Appeals of Texas, Section A.

June 26, 1935.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by the Graybar Electric Company against Charles M. Rich and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals [60 S.W.(2d) 1065], and defendants bring error.

Judgment of Court of Civil Appeals affirmed.

E. A. McDaniel, of McAllen, for plaintiffs in error.

William Hill and Fred J. Dudley, both of Dallas, for defendant in error.

GERMAN, Commissioner.

By article 3825 of the Revised Statutes of 1925 it is provided as follows: "Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties."

The sole question for decision here is this: Can the sureties on the official bond of the constable be held liable in a summary proceeding under this article for the failure or refusal of a deputy of the constable to levy upon or sell property subject to execution?

In the petition for writ of error, the question is briefly stated by counsel for plaintiffs in error as follows: "To be very brief, our contention is that the surety upon a constable's bond is not liable for the acts of a deputy constable in the summary proceedings provided for in Article 3825."

We are cited to no authority upon the question. The argument of counsel for plaintiffs in error briefly is, that because it is expressly provided by article 6870 of the Revised Statutes that sheriffs shall be responsible for the official acts of their deputies, and they shall have power to require from their deputies bond and security, and because there is no such provision in the law with reference to constables, this by implication indicates a legislative intent to exempt constables from liability—so far as summary proceedings are concerned—for the official acts of their deputies.

It is obvious that if the constable himself is liable under article 3825, then his sureties will be liable to the amount of his bond. Taking into consideration all of the provisions of title 56 of the Revised Statutes of 1925, of which article 3825 is a part, we think it clear that such article was intended to provide for summary action against only such officials as to whom an execution might be directed under article 3783, to wit, "sheriff or any constable of the proper county." This being true, it follows that in this particular instance the deputy constable to whom the execution was delivered could not be held liable under article 3825. It appears to be well settled that, "as respects the public and third persons, a sheriff or constable and not his deputy is responsible for the official defaults of the latter, statutes providing for summary remedies against officers are not available against deputies." 57 Corpus Juris p. 981.

It follows from the foregoing that as the deputy constable could not be held liable under article 3825, the plaintiffs in execution are without the remedy provided by this article unless they can hold a constable himself liable thereunder. We think there is no question but what he is liable under this article for the default of his deputy.

In 57 Corpus Juris pp. 797 to 799, § 194, it is said: "For all civil purposes the acts of a deputy sheriff or constable are those of his principal, and his knowledge will be imputed to such principal, although it is otherwise as to knowledge acquired by the deputy before his appointment. Hence, in the absence of a statute relieving him from liability, or providing in terms or in effect that a right of action for a specific tort shall be against the person committing it, it is the general rule that a sheriff or constable is liable for the acts, defaults, or misconduct of the deputy done or committed in the performance of his official duties, his liability in this respect extending not only to acts of misfeasance but also to official nonfeasance."

In the recent case of Murray v. State, 67 S.W.(2d) 274, 276, the Court of Criminal Appeals, speaking through Presiding Judge Morrow, said: "It is well settled that a deputy sheriff is a public officer. Towns v. Harris, 13 Tex. 507; 46 Cor. Jur. p. 1062. He is invested by law with some portion of the sovereign functions of the government, to be exercised by him...