Shull v. Barton

• Decision Date: 17 November 1898
• Citation: 56 Neb. 716,77 N.W. 132
• Parties: SHULL, CORONER, ET AL. v. BARTON, SHERIFF, ET AL.
• Court: Nebraska Supreme Court

56 Neb. 716

77 N.W. 132

SHULL, CORONER, ET AL.

v.BARTON, SHERIFF, ET AL.

Supreme Court of Nebraska.

Nov. 17, 1898.

Syllabus by the Court.

1. The failure of a coroner to cause the surety on a replevin bond to justify as “bail on arrest,” in accordance with section 189 of the Code of Civil Procedure, is not conclusive evidence of the coroner's negligence in approving such replevin bond, nor of his failure to perform an official duty, as that provision of said section was rendered inoperative by the repeal of chapter 1, tit. 8, Code Civ. Proc. (Laws 1887, p. 654, c. 99).

2. A coroner's causing the surety on a replevin bond to justify according to the provisions of such repealed statute is not of itself a protection to him from liability for negligently approving an insufficient replevin bond.

3. Since no statute exists prescribing before whom the surety on a replevin bond shall justify, nor what facts shall be made to appear to protect the officer in approving the bond, it follows that, when the sureties on a replevin bond are excepted to, the officer approves the replevin bond at his peril.

4. That an officer acts in good faith in approving a replevin bond will not of itself protect him from liability for negligence in the premises.

5. If an officer negligently approve a replevin bond signed by insolvent or insufficient sureties, and damages result, he is liable.

6. If the bond when approved is good, subsequent insolvency of the surety will not render the officer liable.

7. The mere taking by an officer of the affidavit of the surety on a replevin bond that he is the owner of real estate situate in the county where the replevin action is pending, not exempt from execution, and of twice the value of the replevied property, will of itself not protect the officer from liability, if the bond proves insufficient.

8. The officer, before approving the replevin bond, in the absence of his own knowledge, should make such investigation and inquiry concerning the financial standing and solvency of the surety as a reasonably prudent man would make before extending credit to the surety to the amount of the bond.

9. Evidence examined, and held to establish that a coroner was guilty of negligence in approving an insufficient replevin bond.

10. Where a creditor attaches personal property as that of his debtor, and it is taken in replevin from the sheriff and delivered to the claimant, the statutory bond being given and approved, and the creditor pending the replevin suit causes the same property to be taken on execution for the same debt for which he had attached it, such seizure of the property on execution is a defense for the coroner in a suit against him by the creditor for negligently approving an insufficient replevin bond.

11. In such a suit the creditor cannot be heard to say that the seizure of the property on execution was void.

12. When attached property is replevied and delivered to the claimant, and the replevin bond required by statute is given and approved, then that property pending that replevin action cannot be lawfully taken by attachment or execution at the suit of the plaintiff who has attached it.

13. In such a case the replevin bond takes the place of the property, and the party who has attached it must follow the replevin action to final judgment, and if successful, and the property be not returned, satisfy his judgment by execution, and, failing in this, look to the replevin bond for indemnity, and, if this proves worthless, to the official bond of the officer, for negligently approving an insufficient replevin bond, if such was the fact.

14. A sheriff, from whom attached property has been replevied, on the termination of the replevin suit in his favor, and the return unsatisfied of an execution issued on the judgment, cannot maintain an action against the officer who served the replevin writ for negligently approving an insufficient replevin bond, whereby the creditor for whom the sheriff acted lost his debt.

15. In such case the creditor, and not the sheriff, is the real party in interest.

16. In such case the sheriff might maintain an action on the replevin bond, as he is the obligee named therein, and trustee for the attaching creditor.

17. Two or more creditors, who have lost their several claims against a debtor and their attachment liens against his property, because an officer negligently approved an insufficient bond in a replevin suit, by which the attached property was taken from the sheriff holding the writs of attachment, cannot join as plaintiffs in a suit against such coroner for damages for negligently approving such replevin bond.

Error to district court, Saline county; Bush, Judge.

Action by John Barton, sheriff of Saline county, and others, against Henry B. Shull, coroner of said county, and others. From a judgment for plaintiffs, defendants bring error. Reversed.

W. H. Morris, for plaintiffs in error.

Hastings & Sands, for defendants in error.

RAGAN, C.

Henry B. Shull and others have filed a petition in error here to review a judgment of the district court of Saline county recovered against them by John Barton and others. To a proper understanding of the points decided here, it is necessary to make a statement of some of the undisputed facts disclosed by the record: The plaintiff in error Shull is the coroner of Saline county. The other plaintiffs in error are the sureties on his official bond. In July, 1891, a co-partnership, under the name of Foster & Ayers, was conducting a mercantile or drug business in Dewitt, in said county. On that date Coe & Co., Brittain-Smith & Co., the Midland Coffee & Spice Company, Funke & Ogden, Raymond Bros., the American Hand-Sewed Shoe Company, and one Warren E. Ayers (all of which parties will hereinafter be denominated the “seven creditors”), each brought a suit against Foster & Ayers in the county court of said county, and each caused a writ of attachment to be issued and placed in the hands of the sheriff of said county. The sheriff by virtue of these several writs of attachment seized the mercantile stock of Foster & Ayers. Thereupon one Lafayette M. Foster and Jennie A. Foster, his wife, doing business as Foster & Co., brought a replevin action against the sheriff for the goods which he held under the attachment writs; and by the process issued in that action all the goods held by the sheriff were taken and delivered to Foster & Co. The coroner (plaintiff in error here) executed the replevin writ. The sheriff, who was made sole defendant in the replevin suit, gave notice to the coroner of exceptions to the sufficiency of the sureties who had signed the replevin bond of Foster & Co.; and thereupon the surety who had signed the replevin bond made affidavit that she was a resident of Saline county; that she owned real estate therein not exempt from execution of the value of $2,500. This affidavit the surety delivered to the coroner. Indeed, it was sworn to before him, and he at once approved the bond or undertaking in replevin. About the 1st of August of said year the seven creditors obtained judgments in the county court on their claims against Foster & Ayers. The county judge issued executions upon these judgments, or some of them, and they came into the hands of the sheriff, and he at once levied them upon the same property which he had attached, and which had been replevied and delivered to Foster & Co.; and by virtue of said executions he again took into his possession said mercantile stock. The goods were again, by an action of replevin, taken from the possession of the sheriff. When the sheriff levied the execution upon the mercantile stock, the replevin action brought by Foster & Co. was pending and undecided. This replevin action proceeded to trial, and the sheriff had judgment for a return of the replevied property, or its value in money. The replevied property was not returned. The sheriff caused an execution to be issued upon his judgment, and this was returned wholly unsatisfied. The sheriff and the seven creditors then brought this action to the district court of Saline county against the coroner and the sureties on his official bond. For cause of action they set out the claims of the seven creditors against Foster & Ayers; the seizing of the latter's property by writs of attachment; its having been taken from the sheriff on the writ of replevin in favor of Foster & Co.; the approval of the undertaking in replevin by the coroner; the reduction of the claims of the seven creditors against Foster & Ayers to judgment; that the judgments were wholly unpaid; the prosecution of the replevin action to judgment in favor of the sheriff; the return of an execution issued on such judgment unsatisfied; the insolvency of Foster & Co. and the surety on their replevin bond as a reason why they had not brought suit on said bond,--and averred that at the time the coroner approved of the replevin bond the surety thereon was then and there insolvent, and that the coroner negligently approved said bond, by reason whereof the said seven creditors had lost their liens upon the attached property, and lost the full amount of their claims against Foster & Ayers. On the trial in the district court the coroner and his sureties demurred to the petition of the sheriff and the seven creditors on the ground that there was a defect of parties plaintiff, and that several causes of action were improperly joined in the petition. This demurrer was overruled, and the coroner and his sureties then filed an answer to the petition, in which, among other things, they averred that there were several causes of action improperly joined in the petition, and that there was a misjoinder of parties plaintiff. On the trial the coroner and the sureties offered in evidence the executions already alluded to, which had been issued by the county court in favor...