Stephens v. Shafer

• Decision Date: 16 December 1879
• Parties: STEPHENS v. SHAFER and another, imp
• Court: Wisconsin Supreme Court

3 N.W. 835

48 Wis. 54

STEPHENS v. SHAFER and another, imp

Supreme Court of Wisconsin

December 16, 1879

Argued December 2, 1879.

APPEAL from the Circuit Court for Winnebago County.

The case is thus stated by Mr. Justice TAYLOR:

"The plaintiff, as sheriff of Winnebago county, appointed Stephen W. Race one of his deputies, and took from him a bond, with Shafer and W. W. Race, the appellants, as his sureties. The bond was joint and several, and was conditioned 'that Stephen W. Race should well and faithfully in all things perform and execute the duties of the office of deputy sheriff of the county of Winnebago, during his continuance in office as deputy sheriff, without fault, deceit or oppression, and should pay over all money that might come into his hands as such deputy sheriff which might be so required by law.'

"An action had been brought against the sheriff to recover the amount of an execution issued upon a judgment rendered in a justice's court, which had been placed in the hands of his deputy, Race, and which he had failed to collect; and in that action a recovery was had against the sheriff, on the ground of negligence on the part of the deputy in not levying upon the property of the defendant in the execution, he having sufficient to satisfy the same, and that afterwards the execution debtor went into bankruptcy, and the plaintiff was unable to collect his debt. Of this action the deputy Race, had notice, and appeared and defended the same at his own expense.

"After judgment in that action, the sheriff commenced the present action upon the bond of the deputy. Upon the trial, the judgment upon which the execution was issued and placed in the hands of Race, was admitted. The plaintiff offered in evidence the execution issued upon such judgment together with the return of deputy Race thereon, 'that after using due diligence, and making diligent search, he was unable to find any personal property wherewith to satisfy the execution;' and then offered in evidence the judgment roll in the said action against the plaintiff. Defendants W W. Race and Shafer objected to the judgment roll as evidence against them on several grounds; but the court below overruled the objections and permitted the record to be received in evidence.

"Plaintiff gave evidence that he had paid the judgment recovered against him, and some other evidence, tending to show that the defendant in the execution had personal property in the county out of which the amount of the execution might have been realized, while the same was in the hands of the deputy, Race; but, as the court directed the jury to return a verdict for the plaintiff for the full amount of the judgment recovered against him in the former action, that evidence is not important in determining the questions relied upon by the appellants for a reversal of this judgment."

From a judgment in plaintiff's favor pursuant to the verdict returned by direction of the court as above stated, the defendants Shafer and W. W. Race appealed.

Affirmed.

Charles W. Felker, for the appellants, upon the question decided by this court, cited 1 Greenl. Ev., §§ 523, 538-9; Brandt on Suretyship, 107; 1 Starkie on Ev., § 32; 3 id., 1300; Duchess of Kingston's Case, per DE GRAY, C. J., 20 How. State Trials, 578; 9 Wheat., 681; Gookin v. Sanborn, 3 N. H., 491; Tarbell v. Whiting, 5 N.H. 63; 8 Wend., 512, 516; Douglass v. Howland, 24 Wend. 56; Thomas v. Hubbell, 35 N.Y. 121; 15 N.Y. 405; 61 id., 356; Beall v. Beck, 3 H. & M. (Md.), 242; Munford v. Overseers, 2 Rand. (Va.), 313; McKellar v. Bowell, 4 Hawks, 41; Lucas v. The Governor, 6 Ala., 826; Walker v. Forbes, 25 Ala. 139; Lartigue v. Baldwin, 1 La. Cond., 356; Snell v. Allen, 1 Swan (Tenn.), 208; 27 Ohio, 498; Pico v. Webster, 14 Cal., 202; 10 id., 517; 7 Wis. 306; 36 id., 612. He also cited and distinguished Duffield v. Scott, 3 Term, 374; Huzzard v. Nagle, 40 Pa. 178; Fay v. Ames, 44 Barb., 327; Rapelye v. Prince, 4 Hill 119; Lee v. Clark, 1 Hill 56; Westervelt v. Smith, 2 Duer, 449; and Crawford v. Turk, 24 Gratt., 176 (which relate to bonds conditioned to indemnify against costs, damages and expenses which a sheriff might incur by reason of neglect or omission of duty, and in which it is held that such conditions anticipate litigation to which the obligors would not be parties, and are stipulations to be bound by the event of a suit between strangers); Irwin v. Backus, 25 Cal., 214; Heard v. Lodge, 20 Pick., 53; Governor v. Shelby, 2 Blackf., 26; State v. Coste, 36 Mo., 437; Annett v. Terry, 35 N.Y. 256; Garber v. Commonwealth, 7 Pa. 256; Hobbs v. Middleton, 1 J. J. Marsh., 176; and Ralston v. Wood, 15 Ill., 159 (where sureties on the bond of executor or administrator, or on a bail or appeal bond, and the like, have contracted with reference to the payment of money or property, or accounting therefor, or other particular act which by covenant their principals are bound to perform); and 44 Barb., 327; 2 Duer, 449; 5 Allen, 509; 8 Watts, 398; 17 S. & R., 354; and 5 Whart., 144 (where obligors upon a joint bond were held to be in privity of contract with each other, and regarded and treated, quoad the contract, as one person).

Moses Hooper, for the respondent, cited State v. Jennings, 14 Ohio St., 73; State v. Colerick, 3 Ohio, 487; Westerhaven v. Clive, 5 Ohio 136; Westervelt v. Smith, 2 Duer, 450; Bartlett v. Campbell, 1 Wend., 50; Fay v. Ames, 44 Barb., 327; Drummond v. Prestman, 12 Wheat., 515-19; McLaughlin v. Bank of Potomac, 7 How., U.S., 220; Tracy v. Goodwin, 5 Allen, 409; Lowell v. Parker, 10 Met., 309; Prichard v. Farrar, 116 Mass., 220; Train v. Gold, 5 Pick., 380; Cony v. Barrows, 46 Me. 498; Dane v. Gilmore, 51 Me. 544-7; Webbs v. State, 4 Coldw., 199; 9 Yerger, 111; Huzzard v. Nagle, 40 Pa. 178; Masser v. Strickland, 17 S. & R., 354; Evans v. Commonwealth, 8 Watts, 398; Charles v. Hoskins, 14 Iowa, 471; Lyon v. Northrup, 17 Iowa 314; 2 Bibb, 453; Bergen v. Williams, 4 McLean, 125; Freeman on Judgm., § 180, and cases there cited.

OPINION

DAVID TAYLOR, J.

The complaint in the record of the action against the sheriff shows that plaintiff's cause of action in that case was founded upon the neglect of the deputy, Race, as above set forth.

The only exception to the evidence in this case which it is material to consider, is that taken to the introduction of the judgment roll in the action against the sheriff. The learned counsel for the appellants insist that, as they were not parties to that action, and had no notice thereof, it was not evidence against them in this action for any purpose. It is not denied but that it was properly received as evidence against Stephen W. Race, the deputy, as he had notice of the action, and defended the same, and was therefore bound thereby.

In the case presented by the record, the principal having had notice of the action against the sheriff for his default, and having appeared and defended that action, the judgment against the sheriff is just as conclusive against him as though the sheriff, after having been compelled to pay that judgment, had brought an action against his deputy for such neglect and misconduct, and had recovered judgment against him in that action.

The exceptions of the appellants present the question whether the sureties in an official bond are bound in any way by a judgment against their principal, in an action not brought upon such bond, for a breach of duty which they have covenanted against in such bond. After examining a great number of decisions in which the question has been discussed and decided, we think the great weight of authority, as well as the better reasons, are in favor of holding that the judgment against the principal is admissible as evidence against the sureties; and, without deciding how far and upon what points the same is conclusive, we hold that the same is at least presumptive evidence of the right of the plaintiff to recover, and of the amount of such recovery, when the execution of the bond is proved or admitted, and the record of the former judgment shows that the recovery was for acts or omissions the proof of which would show a breach of some one or more of the conditions of the bond.

It is urged by the counsel for the appellants that such judgment is "res inter alios acta," and therefore not admissible. We think otherwise. It will be remembered that in an action of this kind the plaintiff's right of action depends upon the fault or misconduct of their principal, and such fault or misconduct must be proved in the action in order to entitle the plaintiff to recover at all. It would seem, therefore, that a judgment against such principal, which is absolutely conclusive against him that he was guilty of such fault, ought to be at least presumptive evidence against his sureties of that fact.

It is evident that the sureties could, in an action against them, make use of a judgment in an action against their principal as a defense, when the judgment was in his favor.

Suppose in this case the sheriff had first brought his action against the principal, such principal not having had any notice of the proceedings against the sheriff, and in such action the jury had found a verdict in favor of the defendant, on the ground that he had not been guilty of any neglect in not collecting the amount of the execution; and after such verdict and judgment the sheriff had brought his action against the sureties in the bond of the principal, alleging the same neglect of the deputy as his cause of action: is it not evident that the sureties could use the judgment in favor of their principal as a complete answer to the plaintiff's cause of action? The judgment in favor of the principal in the former action would be conclusive evidence against the sheriff that he had...