Thomas v. Hinkley

• Decision Date: 17 March 1886
• Citation: 27 N.W. 231,19 Neb. 324
• Parties: JULIUS E. THOMAS ET AL., PLAINTIFFS IN ERROR, v. ELLEN HINKLEY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

27 N.W. 231

19 Neb. 324

JULIUS E. THOMAS ET AL., PLAINTIFFS IN ERROR, v. ELLEN HINKLEY, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 17, 1886

ERROR to the district court for Thayer county. Tried below before MORRIS, J.

AFFIRMED.

O. H. & A. R. Scott, for plaintiffs in error, cited: Sexson v Kelley, 3 Neb. 105. State v. Andrews, 11 Neb. 523.

Mason & Whedon and Manford Savage, for defendant in error, cited Horn v. Whittier, 6 N.H. 88. Governor v. Allen 8 Humph., 176. Thomas v. White, 12 Mass. 369.

OPINION

MAXWELL, CH. J.

The defendant in error recovered a judgment against A. Miller for the sum of $ 900 and costs, for loss of means of support, caused by the death of her husband from intoxicating liquor furnished by Miller. Being unable to collect the judgment from Miller she brought this action against the plaintiffs in error, who were bondsmen of said Miller, and recovered judgment against them. The bond is as follows:

"BOND ON LICENSE TO SELL LIQUORS.

"STATE OF NEBRASKA, THAYER COUNTY. SS

"Know all men by these presents:

"That Amos Miller, as principal, and Julius E. Thomas and Louis Harp, and George M. Church, D. J. Nebergall, Wm. H. Stewart, and Alfred Norboe, as sureties, are held and firmly bound unto the village of Hebron, state of Nebraska, in the penal sum of five thousand dollars, good and lawful money of the United States, for which payment well and truly to be made, we bind ourselves, our heirs and assigns, jointly and severally by these presents. The conditions of the above obligations are such, that whereas the board of trustees of the village of Hebron, in Thayer county, Nebraska, have granted unto the above bounden Amos Miller a license to sell malt, spirituous, and vinous liquors, as provided by law. Said liquors to be sold in the building situated on lot six, block ten, of the town of Hebron, in said county, and said license to continue in force from the 20th day of October, A. D. 1881, until the 20th day of April, 1882 (or during the pleasure of said board).

"Now if the above bounden Amos Miller shall not, during the continuance of said permit, violate any of the provisions of an act to regulate the license and sale of malt, spirituous, and vinous liquors, etc., etc., passed by the legislature of the state of Nebraska, and duly approved by the governor thereof, and to take effect June 1st, 1881, and all acts and parts of act supplemental thereto, and shall pay all damages, fines, and forfeitures, which may be adjudged against him under the provisions of the statutes of the state of Nebraska, then in such case the above obligations to be void, otherwise to remain in full force and effect.

"Signed and sealed this tenth day of October, A. D. 1881.

"AMOS MILLER, [L. S.]

"JULIUS E. THOMAS, [L. S.]

"D. J. NEBERGALL, [L. S.]

"LOUIS HARP, [L. S.]

"GEORGE M. CHURCH, [L. S.]

"ALFRED NORBOE,

"WM. H. STEWART,

"Signed, sealed and delivered in presence of E. S. Knight.

"STATE OF NEBRASKA, THAYER COUNTY. SS.

"Alfred Norboe, representing $ 100, Julius E. Thomas, representing $ 500, Louis Harp, representing (personal property) $ 1,200, George M. Church, representing $ 1,000, D. J. Nebergall, representing $ 1,000, Wm. H. Stewart, representing $ 1,200, being first duly sworn, depose and say (each for himself), that he is a resident householder and freeholder of the county of Thayer, in said state, that he is surety in the foregoing bond, that he is worth in real estate therein the sum set opposite his name above, and that said sum is beyond the amount of his debts, and that he has property liable to execution in the state of Nebraska, equal to the amount so mentioned.

"A. NORBOE

"E. THOMAS, [L. S.]

"LOUIS HARP, [L. S.]

"GEORGE M. CHURCH, [L. S.]

"D. J. NEBERGALL, [L. S.]

"WM. H. STEWART, [L. S.]

"Subscribed in my presence and sworn to this 10th day of October, A. D. 1881.

[SEAL.]

"E. S. KNIGHT,

"Notary Public."

Indorsed on bond: "Filed in the office of the village clerk of Hebron, Nebraska, October 19th, A. D. 1881."

The principal ground upon which a reversal is sought is because the bond is invalid by reason of the village of Hebron being the obligee instead of the state of Nebraska, as required by the statute, and Sexson v. Kelley, 3 Neb. 104, is cited to sustain that position.

In Sexson v. Kelley the bond was made payable to the city of Lincoln, and contained no provision for the payment of damages which might be adjudged against the licensed parties. The wife of Sexson brought an action against the obligors in the bond to recover damages which she had sustained by reason of the sale of liquors to her husband. The defendants demurred to the petition on the ground that it did not state a cause of action, and the demurrer was sustained. In the decision of the case it is said the bond was a nullity. The question properly arose upon the condition which did not include damages, and therefore as the plaintiff's action was to recover damages the surety could not be bound beyond the terms of his contract, and there could be no liability on the bond. This was the particular point urged on the argument and raised by the demurrer. Judge Gantt in writing the opinion discusses the question of the obligee.

The writer entertains great respect for that able and impartial judge to whose learning, research, and industry this state is greatly indebted. But the question was not properly before the court, and the decision on that point can scarcely be considered an authority....