Smith v. Maginnis

• Decision Date: 13 May 1905
• Citation: 89 S.W. 91,75 Ark. 472
• Parties: SMITH v. MAGINNIS
• Court: Arkansas Supreme Court

89 S.W. 91

75 Ark. 472

SMITH v. MAGINNIS

Supreme Court of Arkansas

May 13, 1905

Appeal from Perry Circuit Court, ROBERT J. LEA, Judge.

Reversed.

STATEMENT BY THE COURT.

In February, 1900, one Robert Pearl was appointed a notary public for Perry County in this State, and gave bond in the sum of one thousand dollars for the faithful performance of the duties of the office. J. S. Smith and J. H. Yancey were sureties on his bond.

In February, 1903, C. H. Maginnis brought this action in the Perry Circuit Court against Robert Pearl, the notary, and his bondsmen, Smith and Yancey, and alleged in his complaint that Pearl at various times from March, 1900, to January, 1901 had affixed his certificate and seal of office as notary public to affidavits of various parties showing that they were soldiers, or the widows or heirs of soldiers, and entitled as such to make additional homestead entries. The complaint then proceeds to allege "that the certificates attached to the aforementioned affidavits of George Martin Mary Davis, Jas. P. White, Jasper M. Ford, Mary Jane Reynolds and William A. Flemming were in truth and in fact false, as said aforementioned parties, nor either of them, ever appeared before said Robert Pearl as such notary public, and did not execute the said affidavits before him as such notary public as therein stated." He further alleged that relying on the truthfulness of the certificates attached to the affidavits by Pearl as notary public, plaintiff purchased the homestead claims of the parties named, paying therefor in the aggregate the sum of $ 2,516. "That, owing to the falsity of the said certificates of the said notary public R L. Pearl, and to the fact that the said parties did not appear before him as certified by him, and did not execute the papers and affidavits, he obtained no rights by reason of the said purchase, and the consideration for which he paid the sum of money wholly failed, whereby he is damaged the sum of $ 2,516," for which amount he asked judgment against Pearl and his bondsmen.

Pearl did not appear, and judgment was rendered against him by default. The other defendants, Yancey and Smith, filed an answer in which they alleged "that before March 1, 1900, and before the making of any of the certificates set out in the complaint, Robert L. Pearl had removed from Perry County, and had ceased to be either a citizen or resident thereof, and that he never was in Perry County after February 27, 1900." Thereupon the plaintiff filed a demurrer to the answer, on the ground that the facts stated therein were not sufficient to constitute a defense. This demurrer was sustained, and, Yancey declining to plead further, judgment was rendered against him. Smith asked permission to file an amended answer, but as the attorneys had agreed to submit the case for decision on the pleadings, as they stood, and as an amendment to the answer would necessitate a continuance of the cause, the court declined to allow the continuance unless the attorney for the defendant would state that he had reasonable grounds to believe that he could establish the facts alleged in the proposed amended answer. The attorney declined to do this, and thereupon the court refused to allow him to file the amended answer, and gave judgment against the defendant Smith for the amount of the bond, one thousand dollars, and interest.

Defendants appealed.

Judgment reversed and cause remanded.

Sellers & Sellers, for appellant.

The authority of an attorney is limited, and he cannot effect compromise under this general authority as such attorney. 65 Am. Dec. 344; 13 Ark. 648; 32 Ark. 354. The acts complained of are not the proximate cause of plaintiff's damage. 58 Ark. 157; 56 Ark. 279; 139 U.S. 223; 52 Am. Rep. 154; 154 Mass. 247; 17 W.Va. 198; 83 Ill. 220; 30 Am. St. 792; 40 Ib. 727; 38 Ib. 181; 39 Ib. 51; 66 Am. Dec. 186; 90 Ib. 458; 43 L. R. A. 402; Cooley, Torts, 73; 69 P. 340; 115 Ind. 51; 62 Pa. 353. Appellee cannot maintain this action. Murfree, Off. Bonds, § 468; 37 N.J.L. 5; 46 Am. Rep. 169; 3 Am. St. 699; 111 Mass. 499; 32 P. 410; 100 U.S. 195. The notary vacated his office by removing from the county. Const. art. XIX, § 4; 23 Am. & Eng. Enc. Law, 425; Mech. Pub. Off. § 437; 106 Ind. 203; 128 Ind. 129; 55 Cal. 81. A judicial investigation is not necessary to establish such vacancy. 1 Pick. 129; 21 Ind. 516; 149 Ind. 283; 13 A. 865; 27 Ind. 240. The acts of a notary outside of his county are void. 2 Head, 595; 31 Ark. 53; 75 Am. Dec. 753; 87 Ga. 672; 21 Mo.App. 5; 59 Ib. 188; 36 S.W. 856. If the notary had no authority to take the affidavits, the sureties are not bound. 22 S.W. 200; 95 N.W. 769; 43 C. C. A. 218; 72 P. 517; 60 N.Y. 421; 4 P. 207; 7 Minn. 398; 63 Ark 337; 24 F. 348; 36 F. 172; 4 P. 207; 51 P. 523; 84 Am. Dec. 606; 60 N.Y. 421. The State alone can sue. 74 S.W. 350; 8 La.Ann. 95; 24 Me. 299; 8 Lea, 657. Sureties are favored in the law, and their obligations are construed strictly in their favor. 1 Brandt. Sur. § 93; 48 Ark. 426; 24 Am. & Eng. Enc. Law, 749.

Meyers & Bratton, for appellee.

The complaint is sufficient to maintain the action. 39 Ark. 173; 51 Ark. 210; 12 Ia. 570; 27 Ia. 276; 61 Cal. 611; 74 Cal. 435; 74 S.W. 350. Any one damaged by breach of an official duty of an officer may bring an action against him and his sureties. 152 Ill. 560; 138 Ill. 322; 13 Sm. & M. 392; 6 Am. & Eng. Enc. Law, 143; 7 Cyc. 233; 43 Am. Dec. 719; 3 N.Y. 467; 10 Cal. 239; 39 Mich. 456; 63 S.W. 819; 31 P. 1132; 97 Cal. 208; 2 Mo.App. 413; 61 Ia. 35; 94 N.Y. 302; 15 How. 179; 74 Mich. 643. The taking of an acknowledgment is a ministerial act. 15 Ark. 655; 1 Pet. 328; 77 Ga. 620; 69 Ill. 666; 92 Ky. 505. Sureties are liable for the acts of de facto officers. 2 Brock. 96; Throop, Pub. Off. §§ 664, 288; 77 Ill. 52; 69 Ind. 46; 17 Minn. 451; 36 Vt. 329; 44 Am. Dec. 300; 14 B. Mon. 29; 25 Mich. 10; 8 Nev. 105; 37 Ala. 299; 17 Ill. 278; 6 Nev. 353; 23 Am. Dec. 513. An officer who, after moving from the county of his residence, continues to act as such officer, is an officer de facto. 49 Ark. 439; 5 Am. & Eng. Enc. Law, 105; 71 Me. 207; 109 Mo. 260; 23 Cal. 315; 20 Ga. 746; 42 N.H. 56; 87 Va. 484; 17 Oh. 143; 38 Kan. 562; 25 Ark. 337; Throop, Pub. Off. § 631; 19 Am. & Eng. Enc. Law, 562; 25 Ill. 325; 43 Md. 572; 30 La.Ann. 280. Official character cannot be questioned collaterally. 2 Am. & Eng. Enc. Law, 823; 49 Ark. 439; 63 Cal. 174; Mech. Pub. Off. § 330. Appellants are estopped from alleging that the notary was an officer de jure. 8 Am. & Eng. Enc. Law, 807; 63 Am. Dec. 366; 37 Ala. 298; 22 Ark. 524; Throop, Pub. Off. § 288; Mech. Pub. Off. §§ 296, 341; 33 Ala. 674; 69 Ind. 46. The acts, being ministerial, would have been legal if actually done by the officer. 15 Ark. 655; 32 Ark. 666; 43 Ark. 132; 52 Ark. 356; 55 Ark. 81; 8 Am. & Eng. Enc. Law, 816; 58 Am. Rep. 348. Sureties upon an official bond can make no defense that could not be made by the principal. 54 Ia. 699; 48 Pa.St. 345; 32 Ind. 309; 14 Ia. 473; 10 Met. 309; 7 How. 220; 12 Wheat, 515. The filing of an amended answer is within the discretion of the court. Kirby's Dig. § 6145; 26 Ark. 360; 60 Ark. 526; 68 Ark. 314; 32 Ark. 244; 102 U.S. 375. In the absence of fraud, litigants are concluded and bound by the acts or omissions of their attorneys. 66 Ark. 185; 12 Ark. 401; 13 Ark. 601; 14 Ark. 365; 57 Ark. 600; 59 Ark. 441.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from a judgment against the sureties on the bond of a notary public. The complaint alleges that the plaintiff, relying upon certain certificates attached to certain affidavits by the defendant Robert Pearl, as notary public, purchased certain additional homestead rights, but that, by reason of the falsity of the certificates of the notary public, and the fact that the parties named did not appear before him as certified by him, plaintiff was imposed upon, and obtained no rights by reason of said purchases. Now, while plaintiff alleges that the certificate of the notary that the parties named appeared before him in person was false, he does not allege that the parties from whom he purchased did not in fact own the additional homestead rights which he purchased of them. If these parties owned the homestead rights that they sold to plaintiff, then, even though the affidavits proving such ownership were never made, and the certificates to that effect were false, still plaintiff was only damaged the amount required to get up new affidavits to prove the claims; for the fact that such affidavits to which the notary certified were never made, and the certificates to that effect were false, does not show that the parties from whom he purchased did not own the homestead claims they sold or affect the validity of such sale, and does not show that plaintiff was injured by the false certificate. We think that the complaint is defective in this respect, and that it is not definite and certain enough as to the parties from whom plaintiff purchased, or as to whether those parties in fact owned the claims that they sold the plaintiff, or as to how plaintiff was injured by the false certificate.

But, as the plaintiff no doubt intended to allege that the parties from whom he purchased did not own any right to additional homestead entries given by the statute to certain soldiers and sailors of the United States, and that he obtained nothing by his purchase, we now proceed to consider whether the fact that the notary public falsely certified that these parties had made affidavits to such ownership was the proximate cause of his injury. The purpose of these affidavits, showing that the soldier was entitled to an additional homestead entry, and showing that such right had been duly assigned, was not to enable the...