State, ex rel. Meriwether v. Walford

• Decision Date: 21 December 1894
• Docket Number: 1356
• Parties: THE STATE, EX REL. MERIWETHER, ADMINISTRATOR, v. WALFORD ET AL
• Court: Indiana Appellate Court

39 N.E. 162

11 Ind.App. 392

THE STATE, EX REL. MERIWETHER, ADMINISTRATOR, v. WALFORD ET AL

No. 1356

Court of Appeals of Indiana

December 21, 1894

From the Jennings Circuit Court.

Judgment affirmed.

J. B Meriwether, for appellant.

OPINION

LOTZ J.

This was an action on a constable's bond, instituted by the State on the relation of James B. Meriwether as administrator of the estate of Ed Thomas, deceased. The appellee Walford was the constable and principal in said bond, and the appellees Oglesby and Lutz were his sureties. The complaint was in two paragraphs. The first alleges in substance that Walford was duly appointed and qualified as a constable for Jeffersonville township, Clark county, Indiana, and executed his official bond in the penal sum of $ 1,000, with said Oglesby and Lutz as his sureties, conditioned among other things that he would faithfully perform his duties as such constable as required by law. It is further averred that Walford did not duly, honestly and faithfully perform his duties as such constable as required by the terms of said bond and by the law, in that on June 2d, 1891, he, as such constable, had a warrant commanding the arrest of one Ed Thomas; that he did, under color of his office as said constable, undertake to execute said warrant and arrest said Thomas; that in executing said warrant he did "carelessly, negligently, and intentionally, without cause or reason, and without any notice to said Thomas that he was an officer or had a warrant or authority to make arrests, and without any warning to said Thomas, with a pistol loaded with powder and ball, did shoot, wound and injure the said Thomas, and from which injuries the said Thomas subsequently died.

The second paragraph of the complaint is much the same as the first, except there is no averment that the constable had a warrant; the arrest having been attempted under color of his office alone.

Walford demurred separately and Oglesby and Lutz jointly, assigning as a cause that neither paragraph stated facts sufficient to constitute a cause of action.

These demurrers were sustained, and appellant refusing to amend, judgment was rendered on demurrer. These rulings are assigned as error.

Whether the wrongful acts of the constable were done by virtue of his office or by color of his office does not very clearly appear from the allegations. An act done by virtue of an office is one within the authority of the officer. If in doing such act the officer exercises that authority improperly or abuses the confidence which the law reposes in him, he will be liable for the injury done. An act done by color of an office is one of such nature and character that the office gives the officer no authority to do. The authorities are all agreed that if a wrongful act be done by virtue of the office, the officer and his sureties will be liable on his official bond. State, ex rel., v. Beckner, 132 Ind. 371, 31 N.E. 950; Commonwealth v. Cole, 46 Am. Dec. 506 note.

But whether or not an officer and his sureties are liable on his official bond for a wrongful act done by...