Town of Norwalk v. Ireland

• Decision Date: 05 June 1896
• Citation: 35 A. 804,68 Conn. 1
• Court: Connecticut Supreme Court
• Parties: TOWN OF NORWALK ex rel. FAWCETT v. IRELAND et al.

35 A. 804

68 Conn. 1

TOWN OF NORWALK ex rel. FAWCETT

v. IRELAND et al.

Supreme Court of Errors of Connecticut.

June 5, 1896.

Appeal from court of common pleas, Fairfield county; Curtis, Judge.

Action by the town of Norwalk, on the relation of Wilinot Fawcett, against Samuel O. Ireland and others, to recover on an official bond. Judgment for plaintiff, and defendants appeal. Affirmed.

John H. Light, for appellants.

John C. Chamberlain and Joseph A. Gray, for appellee.

FENN, J. This is an action brought against a constable and the two sureties upon his official bond to recover damages for the act of such constable in attaching the property of the plaintiff in a suit against the plaintiff's wife, to which suit the plaintiff himself was not a party. The court of common pleas in Fairfield county rendered judgment in the present suit in favor of the plaintiff against all of the defendants, for substantial damages. The appeal presents three reasons material for us to examine: First. It is claimed that the court erred in overruling the demurrer to the complaint of the two defendants who were sureties, Herman Quittner and William Ireland. Second. In refusing to admit in evidence a certain written inventory. Third. In overruling the claims of the defendants, to the effect that it appeared by the finding that, if the plaintiff had any interest in the property taken, it was not a separate and distinct interest, but either one in common with his wife, or as a partner with her; and, further, that the plaintiff was estopped from claiming a separate and distinct interest in such property. We will consider these claims separately and in the order above stated. In reference to the first, it appears that the complaint is in proper and unexceptionable form for such an action, assuming any action lies in such a case against an officer and his sureties upon the official bond. It claimed the only proper relief in such an action, namely, damages. The demurrer is as follows: "The defendants, Herman Quittner and William Ireland, demur to the prayer or claim for relief, because on the facts stated the plaintiff is not entitled to the relief therein sought against them." In Walko v. Walko, 64 Conn. 74, 77, 29 Atl. 243, this court passed upon a similar demurrer, and there said: "It is in no sense what it purports to be, a demurrer to relief. 58 Conn. 567, § 11, 20 Atl. viii. It is in direct contravention to Gen. St. § 873, which provides that 'all demurrers shall distinctly specify the reasons why the pleading demurred to is insufficient'" The rule for proceedings under the practice act, referred to in the above quotation, is too plain to admit of justification of an attempt to nullify the statute quoted in this way: "Where any relief demanded by the plaintiff, cannot properly be demanded upon the allegations of the complaint, although these may be sufficient to call for some other relief, the defendant may demur to the relief so improperly demanded." This demurrer, so called, was therefore properly overruled; and the only claim sought to" be made by the defendants under it, namely, that no form of liability was Imposed upon them, and no action whatever could be maintained against them by reason of the act alleged, was not before the court below. If, therefore, upon this question—which has, in fact, been fully argued before us by counsel representing both parties, and which we have fully considered—, we were of opinion that the views of the defendants were correct, we ought not, for the reason above given, in justice either to the trial court or to the plaintiff, on this ground, to disturb the judgment rendered. Since, however, we have reached the opposite conclusion in reference to the question, as it is of much practical interest and importance, and as there is no utterance of this court distinctly bearing upon it, although it has received frequent consideration in sister jurisdictions and by the supreme court of the United States, we have concluded that it will be proper for us to state our views regarding the matter.

The bond in suit in the present case is in the form prescribed by Gen. St. § 94. The condition is that the constable "will faithfully discharge the duties of his office, and answer all damages which any person may sustain by his neglect or unfaithfulness in his discharge thereof." The question, as before stated, is whether the taking by the constable, upon a writ of attachment on mesne process, against one person, of the goods of another, is a breach of this condition of the official bond, for which the sureties upon such bond are liable. This question, either in the precise form above stated, or forms which are clearly analogous, has received examination showing much divergence of views and difference in conclusions in other jurisdictions. Perhaps at present the leading, as well as one of the most recent, cases upon the subject is that of Lammon v. Feusier, 111 U. S. 17, 4 Sup. Ct. 286. The opinion, in which the entire court concurs, is by Mr. Justice Gray. The citation and review of the earlier cases throughout the United States is most exhaustive. The precise point decided was: "The taking, by a marshal of the United States, upon a writ of attachment on mesne process against one person, of the goods of another, is a breach of the condition of his official bond, for which his sureties are liable." The bond in the case cited, as in the one before us, was conditioned for the faithful performance of the officer's duties. The line of reasoning adopted by the court, to summarize it, is this: The official duty of the officer serving the writ is to take the property of the defendant, and of no one else. The taking of the property of another is a breach of such duty; but the act, being done in executing the process, is an attempt to perform an official duty, and is an official act. While the person, other than the defendant, whose property is wrongfully taken, may indeed sue the officer, like any other wrongdoer, in an action of trespass to recover damages for the wrongful taking, the remedy of such person is not limited to such action against the officer personally. The official bond is not made to the person in whose behalf the writ is issued, nor to any other individual, but to the government for the indemnity of all persons injured by official misconduct, and such bond may be put in suit by and for the benefit of any such person. The court then refers to the decisions which hold that, when property of a third person is thus taken, the rightful owner cannot maintain an action of replevin, nor recover the property specifically in any way, except in the court from which the writ issued, and adds: "The principle upon which these decisions are founded is, as declared by Mr. Justice Miller in Buck v. Colbath, 3 Wall. 334, 'that whenever property has been seized by an officer of the court by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being; and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises.'" The court then proceeds to review the decisions upon the "analogous question," concerning the liabilities of sureties upon the official bond of a sheriff, a coroner, or a constable. The conclusion reached is that upon the weight of authority as well as upon principle the sureties are liable. In this conclusion, and mainly for the reasons stated, we concur.

It was urged before us by the defendants in the present case that at the time when many of the decisions supporting the view above indicated were rendered there were few statutes authorizing the replevying of goods from an officer, and that the goods attached, whether such attachment was rightful or wrongful, were supposed to be in the custody of the court. It was claimed that the lack of this remedy influenced many decisions, including Lammon v. Feusier, supra, as alleged to be shown by the language to which we have referred. Attention was called to our present statute, which authorizes any person claiming the right to the possession of goods attached to maintain replevin against an officer. It is true, we have such a statute. But we think that upon this fact alone no distinction which will support the plaintiff's contention can be based. It was in the unquestionable power of the legislature to confer the statutory right provided in Gen. St. § 1325. But doing so does not destroy—it does not affect—the established principle that property attached is in the custody, if not indeed ordinarily, in this state, of the court, of what is equivalent,—of the law. Hence, as characterizing the taking, and proving that, while something for which trespass lies, it is not a mere trespass, the language of our decisions prior to the present existing extension of the statute in question is just as significant and applicable as it ever was. Thus, in Bowen v. Hutchins, 18 Conn 550, 552, where it was held that a writ of replevin to obtain the restoration of goods attached in favor of a claimant who was not a party to the attachment must be brought against the attaching creditor, and could not be sustained against the officer who served the attachment, it was said: "The goods, when attached, are taken by the officer in custody of the law. And, if they were rightfully attached, they ought to be restored to that custody, that they may be disposed of as the law directs But the officer has no interest in the property. To him it is perfectly immaterial whether it belongs to the plaintiff in the original suit or the plaintiff in the action of replevin. He has but to discharge his duty as a public officer." See, also, Howard v. Crandall, 39 Conn. 213; McDonald v. Holmes, 45 Conn. 157. We cannot hold that for such an act as that in...