Turner Frazer & Co. v. Killian
| Decision Date | 25 April 1882 |
| Citation | 12 N.W. 101,12 Neb. 580 |
| Parties | TURNER, FRAZER & CO., PLAINTIFFS IN ERROR, v. JOSEPH KILLIAN, ET AL., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hall county. Heard below before POST, J.
REVERSED AND REMANDED.
Abbott & Caldwell, for plaintiff in error, on liability of sheriff cited Noble v. Himeo, ante p. 193. Huffman v Kopplekom, 8 Neb. 344. Brandt on Suretyship, 627. Cooley on Torts, 397. On validity of mortgage, cited Robinson v Elliott, 22 Wall. 513. Frankhouser v. Ellett, 22 Kan. 127. Goodheart v. Johnson, 88 Ill. 58.
Thummel & Platt, and James H. Woolley, for defendants in error, claimed that act of sheriff was a wilful trespass for which sureties are not liable, it being done virtute officii, and not colore officii. Story v. Jennings, 14 Ohio St. 43. Ottenstein v. Alpaugh, 9 Neb. 237. Ex parte Reed, 4 Hill, 572. State v. Mann, 21 Wis. 693. The mortgage was void. Herman on Chattel Mortgages, 222 to 236. 3 Neb. 76. 6 Neb. 392. 8 Neb. 373.
This is a petition in error from Hall county. The action below was against Joseph Killian, the sheriff of that county, and his sureties, upon his official bond to recover damages alleged to have been sustained bye the plaintiffs as mortgagees of certain personal property, in consequence of its seizure and sale by that officer under a process which he held against the property of the mortgagor. To the petition several demurrers were interposed, one by the sheriff, and one by his sureties. These demurrers, which were general, were sustained, and it is this ruling of the court that is now complained of.
On behalf of the sureties it is claimed in support of the ruling upon their demurrer that, inasmuch as the petition shows the seizure of the goods to have been made by the sheriff after being fully advised by the plaintiffs of their claim to them, his act was a trespass for which they are not answerable. And cases are cited which support counsel in this view; but, as we think, the great weight of the authorities is the other way.
In the case of The People v. Schuyler, 1 Comst. 173, it was held that: "Where a sheriff, having in his hands a process against the property of the defendant therein, seizes by virtue thereof the goods of another person, he is guilty of official misconduct, and he and his sureties thereby become liable on his official bond." To the same effect are the following of the numerous cases that might be cited. Carmack v. Commonwealth, 5 Binn. 184. Commonwealth v. Stockton, 21 Ky. 192, 5 T.B. Mon. 192. State, ex rel. Blinebury v. Mason, 25 Wis. 684. Moulton v. Jose, 25 Me. 76. Charles v. Haskins, 11 Iowa 329. Skinner v. Phillips, 4 Mass. 68. And our own decisions upon the question are in accord with the view that, when a sheriff in the performance of his official duty is guilty of misconduct resulting injuriously whether to one, like a party to a suit, having a direct interest in his action, or to a stranger to the proceeding, both he and his sureties are answerable therefor.
In the case of Kane v. Union Pacific Railroad Co., 5 Neb. 105, where one of the conditions of the bond of Kane as county treasurer was the same as the one now under consideration, viz: that "he shall faithfully and impartially, without fear, favor, fraud, or oppression, discharge all the other duties now or hereafter required of his office by law," it was held that the exaction of illegal fees as treasurer rendered both him and his sureties liable.
Again, in the case of Huffman v. Koppelkom, 8 Neb. 344, 1 N.W. 243, where it was shown that the defendant, as sheriff, holding a process authorizing him to arrest one Clark, who was charged with a felony, through carelessness and unlawfully arrested the plaintiff, and in so doing seriously wounded him, we held that both the sheriff and his sureties were liable in an action on his bond.
Still another case possibly more directly in point, and recently decided, is that of Noble v. Himoe, ante page 193, in which a constable with an execution in his hands against the property of S., the keeper of a drug store, seized a lot of patent medicines held by the druggist for sale on commission, although duly notified that they belonged to another. It was held that the constable and his sureties were liable to the owner of the medicines for their value.
In the case now under consideration counsel for the defendant in error lay particular stress upon the fact of its being alleged in the petition "that the defendant Killian * * * having full knowledge of plaintiffs ownership and possession, wrongfully and unlawfully broke into said store, seized said goods," etc., and claim that inasmuch as this shows a deliberate act of trespass it cannot properly be said to have been an official act. We think this position is untenable. The sheriff had the process of a court, which by the law he was directed to execute in a certain manner upon the property of the person named therein. The condition of his bond which ran to the county of Hall, for the benefit of the public, was that he would do this faithfully and without favor, or oppression, etc. This he did not do, but instead took the property of another and disposed of it in satisfaction of the writ. This very clearly was a violation of official duty and within the contemplation of his bond, just as much so as if the act had resulted from gross carelessness, or mere indifference in performing the duty enjoined upon him.
Another point made against the petition is, that it does not show from what court, nor when, the order of attachment under which the sheriff seized the...
To continue reading
Request your trial