State ex rel. Russell v. Moore
| Decision Date | 31 January 1854 |
| Parties | THE STATE, TO THE USE OF RUSSELL & WIFE, Plaintiff in Error, v. MOORE et al., Defendants in Error. |
| Court | Missouri Supreme Court |
1. A suit upon a sheriff's bond is properly brought in the name of the state.
2. A sheriff is responsible for all trespasses committed by a deputy by color of his office.
3. The security in a sheriff's bond are liable for a trespass committed by the sheriff, in seizing property exempt from execution.
This was an action brought under the code, in the name of the state of Missouri, to the use of William Russell and Sarah J., his wife, against Robertson Moore and others, upon a bond executed by Moore as principal, and the other defendants as his securities, conditioned that Moore should faithfully perform his duties as sheriff of Chariton county, according to law. The breach of the bond was charged in the petition substantially as follows:
On the 25th of November, 1848, a suit was commenced in Chariton county by George W. Temple against Sarah J. Cochran, who has since intermarried with the plaintiff, William Russell, and a writ of attachment issued, which was levied upon the goods and effects of the said Sarah J. to the value of $9,454 49. The sheriff, by his deputies, took the goods into his possession, and kept them so negligently that they were all lost, stolen, destroyed or injured except the amount in value of $1, 149 72. The sheriff also seized and took into his possession the wearing apparel of the said Sarah J., by which she was damaged to the amount of $2,000. At the September term of the Chariton Circuit Court the said sheriff was directed and ordered by the court to deliver to the said Sarah J. the goods, &c., seized by him, the suit having terminated in her favor. This was the substance of all the material allegations in the petition. The damages were laid at $8,000. A demurrer to this petition was sustained and the plaintiffs appealed.
Davis, for plaintiff in error.
I. The suit is brought in the name of the proper party. Code of Practice, art. 1, sec. 3.
II. The securities of Moore are liable for all damages occasioned by him under color of, and in discharge of his official duties as sheriff. 13 Mo. 437. 15 Wend. 577. 7 J. J. Marsh, 166.
III. No demand or order of court for the return of the property was necessary.
Clark, for defendants in error.
I. The code requires that all suits shall be brought in the name of the real party in interest, with certain exceptions, of which this is not one.
II. The petition joins a cause of action for which the sheriff alone is liable, with one for which the sheriff and his securities are liable. The securities in a sheriff's bond are not liable for his trespasses. 8 Pick. 543. 16 Pick. 19. 11 Mo. 13. 8 Mass. Rep. 79. 1 Binney, 240. 7 Cowen, 739. 18 J. R. 390.
III. The petition does not show that any demand was ever made on the sheriff for the return of the property, or that he was notified of the result of the suit or of the order of the court.SCOTT, Judge, delivered the opinion of the court.
1. The first ground of demurrer to plaintiff's petition is, that the proper parties are not made plaintiffs. It is maintained that the suit should have been brought in the name of Wm. Russell and his wife, they being the real parties in interest, and not in the name of the state of Missouri. The action is on a sheriff's bond, which is, by law, made payable to the state of Missouri, and is against the sheriff and his sureties. In the construction of the present practice act, it has been held, that the obligee of a bond, and the payee of a note are not the proper persons in whose names suits should be instituted on such instruments. They are the trustees of an express trust within the exception of the act. Harney v. Dutcher, 15 Mo. 91.
Another objection to the petition is, that a cause of action which lies against the sheriff alone, is joined with one against both him and...
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