Rodini v. Lytle

• Decision Date: 27 January 1896
• Citation: 43 P. 501,17 Mont. 448
• Parties: RODINI v. LYTLE et al.
• Court: Montana Supreme Court

43 P. 501

17 Mont. 448

RODINI v. LYTLE et al.

Supreme Court of Montana

January 27, 1896

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by Andrew Rodini against Elias Lytle and others. Judgment for defendants. Plaintiff appeals. Affirmed.

The plaintiff recovered a judgment against the defendant Lytle for damages by reason of an unlawful seizure by Lytle, as constable, of personal property belonging to plaintiff. The seizure by the constable was made in an action in which persons other than this plaintiff were defendants. The judgment was affirmed in 13 Mont. 123, 32 P. 491. Upon the remittitur filed in the district court, the plaintiff Rodini, commenced the action now before us against Lytle, the constable, and the sureties on his official bond, J. D Thomas and H. G. Valiton. The plaintiff set up the facts above mentioned, and pleaded in full the official bond of the constable. The bond was to the effect that if said Lytle shall faithfully perform all the duties of his said office as constable, according to law, and the requirements of any law that may hereafter be enacted, the obligation shall be null otherwise, to remain in full force and effect. The sureties filed demurrers to the complaint. The demurrers were upon several grounds,--among them, that the complaint did not set up facts sufficient to constitute a cause of action. The complaint set forth the rendering of the former judgment in favor of this plaintiff and against the defendant Lytle. That judgment having been so rendered, plaintiff claimed that, upon pleading that fact, as he did, and the giving of the official bond by the sureties, the said judgment theretofore given against said Lytle created a liability against the sureties. The sureties were not joined in the original suit, and were not in any way made parties thereto. The point raised by the defendants' demurrers was that they, not being parties to the original suit, were not bound by the judgment therein, nor liable, by reason of their bond, to pay said judgment. The demurrers were sustained. Plaintiff electing to stand upon his complaint, judgment was rendered against him, from which he now appeals.

Chas. O'Donnell, for appellant.

John T. Baldwin, for respondents.

DE WITT, J. (after stating the facts).

The question raised upon this appeal is, what is the effect, upon the sureties on the official bond, of a judgment rendered against their principal? There is a direct conflict in the authorities upon this question. 2 Black, Judgm. § 588; Mechem, Pub. Off. § 290; Brandt, Sur. § 637; and cases collected and reviewed in these text-books. It is held by many courts that, when a bond is given to the effect that the principal will do a certain act,--as, for instance, pay a certain sum of money, or satisfy a judgment,--then the sureties are bound that he shall do such act; and the judgment against the principal is conclusive against the sureties. But that is not this case, and that question need not here be treated. The bond here was not for the performance of a specific act, but it was for general good and faithful conduct. It is as to judgments against principals who have given bonds of this nature--that is official bonds of sheriffs and constables--that the difference of opinion among the authorities exists, and which difference we shall now note. One line of authorities holds that the judgment against the principal is conclusive against the sureties. The courts holding this view are very few, although among them is one wholly respectable tribunal. The second view held is that the judgment against the principal is prima facie evidence against the sureties. The third rule laid down by the authorities is that the judgment against the principal is no evidence at all against the sureties, and that, to hold the sureties for the misfeasance of the principal, the facts of the misfeasance must be proved in an action in which the sureties are defendants. These two latter rules are sustained by probably a nearly equal number of respectable courts.

The question being a new one with us, and the authorities being divided, we shall proceed to decide the matter upon what appears to us to be the most reasonable principle. The case of Pico v. Webster, 14 Cal. 203, is a leading case. We find it cited by all text writers, and in many of the opinions. Its reasoning appeals to us so strongly that we quote from it somewhat at length: "This suit was brought on the official bond of the defendant, Webster, who was sheriff of San Joaquin county, against Webster and his sureties. The suit was brought to recover damages for the levy by Webster on property of plaintiff, which levy was made under color of process. Suit was brought against Webster for the trespass involved in this levy and seizure, and judgment recovered against him before the institution of this suit. The record of this recovery was offered as evidence by the plaintiff on the trial. The defendants offered to prove, on their part, that Webster was not guilty of the trespass complained of, and that the property seized was not the property of the plaintiff here. But the court refused to admit the testimony, upon the ground that the judgment against the sheriff was conclusive of all the facts passed upon and decided by the record. To this ruling the defendants excepted, and now present it for review here on appeal. There is no little conflict in the cases on this subject. There can be no doubt that, when a surety undertakes, for the principal, that the principal shall do a specific act, to be ascertained in a given way,--as, that he will pay a judgment,-the judgment is conclusive against the surety; for the obligation is express that the principal will do this thing, and the judgment is conclusive of the fact and extent of the obligation. As the surety in such cases stipulates without regard to notice to him of the proceedings to obtain the judgment, his liability is, of course, independent of any such fact. Train v. Gold, 5 Pick. 380; Lincoln v. Blanchard, 17 Vt. 464. See, also, Riddle v Baker, 13 Cal. 295. It is upon this ground that the liability of a bail is fixed absolutely by the judgment against the principal. But this rule rests upon the terms of the contract. In the case of official bonds, the sureties undertake, in general terms, that the principal will perform his official duties. They do not agree to be absolutely bound by any judgment obtained against him for official misconduct, nor to pay every such judgment. They are only held for a breach of their own obligations. It is a general principle that no party can be so held without an opportunity to be heard in defense. This...