White v. Conley
| Decision Date | 11 March 1930 |
| Docket Number | 6423. |
| Citation | 152 S.E. 527,108 W.Va. 658 |
| Parties | WHITE v. CONLEY et al. |
| Court | West Virginia Supreme Court |
Submitted March 4, 1930.
Syllabus by the Court.
An action at law on the official bond of a justice of the peace can be prosecuted only in the name of the state.
Notice of motion for judgment under Code, c. 121, § 6, on the official bond of a justice, is not a proper procedure where the claim asserted is one which sounds in damages, as contradistinguished from a money demand.
The issuance of an execution by a justice of the peace is a ministerial duty.
In an action upon the official bond of a justice for his alleged failure to issue an execution as required by the law, the measure of damages is not necessarily the amount for which the execution should have been issued, but the actual loss suffered by the creditor through the neglect of the justice.
Upon the trial of such an action, an instruction which told the jury, in substance, that, if they believed from the evidence that the justice failed to issue an execution on a stay bond as required by law (the said bond having been given for plaintiff's benefit and not satisfied), and that the plaintiff did not direct the justice not to issue such execution, they should find for the plaintiff, is prejudicially erroneous, because it ignores the proper measure of damages.
Error to Circuit Court, Logan County.
Action by C. M. White against I. M. Conley and another. To review an adverse judgment, defendants bring error.
Reversed verdict set aside, and action dismissed without prejudice.
N. D Waugh and Chas. L. Estep, both of Logan, for plaintiffs in error.
J. E Peck, of Logan, for defendant in error.
I. M. Conley, a justice of the peace of Logan county, and American Surety Company, surety on his official bond, prosecute this writ of error to a judgment of the circuit court of said county, rendered against them on said bond for the sum of $150 in favor of C. M. White upon a notice of motion for judgment.
The background of the suit: On the 24th day of November, 1925, White obtained a judgment before Conley, justice of the peace as aforesaid, for $150 and costs, against Willie Deskins and Riley Damron. On the 30th day of November, 1925, Deskins and Damron, upon filing with the justice a bond in the penalty of $300 with Nick Borders as surety, obtained a stay of execution for six months. Upon expiration of the stay, the latter part of May, 1926, White called upon the justice with reference to the claim and at the suggestion of the justice undertook to ascertain the whereabouts of the surety on the stay bond, but White did not demand of the justice that he issue execution on the bond, nor did he direct the justice not to issue such execution. Execution was not in fact issued until the 10th day of December, 1927, and was returned "no property found." This proceeding against the justice and his surety was instituted on the 25th day of January, 1928.
Section 126, c. 50 of the Code, reads:
The position of the plaintiff is that, by reason of the failure of the justice to issue execution on the bond within three days after the expiration of the stay, pursuant to the mandatory requirements of the statute (the plaintiff having failed to recover the amount of his debt), liability exists against the justice and the surety on his official bond for the amount of the plaintiff's judgment and costs obtained by him against Deskins and Damron. This proposition is embodied in plaintiff's instruction No. 1, which was given to the jury by the trial court: "The court instructs the jury that when in an action before a justice of the peace a stay bond is given and the judgment with interest and costs is not paid when the stay expires, the statute is mandatory and requires the justice before whom said action is pending, to issue execution thereon within three days after the stay expires, unless ordered by the party entitled to receive the money thereon, not to do so and unless the jury should find from the evidence in this case that the said C. M. White ordered the defendant I. M. Conley not to issue execution on said stay bond, then the jury should find for the plaintiff."
The first point of error goes to the manner in which the suit is brought. It is urged by the defendants that the notice should have run in the name of the state of West Virginia for the use and benefit of the plaintiff. This point is well taken. The defendants' motion to quash the notice should have been sustained. The official bond of a justice of the peace is payable to the state of West Virginia. Code, c. 10, § § 1 and 14. It is provided in section 2 of chapter 10 of the Code that suit on official bonds may be prosecuted in the name of the state of West Virginia. In Brooks v. Miller, 29 W.Va. 499, 2 S.E. 219, Judge Snyder, speaking for the Court, said that section 2, so far as it relates to law actions, should be regarded as mandatory and be pursued strictly. See, also, Moore v. Henry, 76 W.Va. 271 wherein, at page 275, 85 S.E. 527, other authorities, both decisions and texts, are cited and quoted from in support of the proposition laid down by Judge Snyder. 46 Corpus Juris, 1078. The common-law rule that actions on bonds payable to the state must be brought in the name of the state is recognized in State ex rel. McDermott v. Guaranty Co., 85 W.Va. 720, 102 S.E. 683. This must be taken as settled law and adhered to. To meet this proposition, however, the plaintiff says that this proceeding is properly brought in the name of the plaintiff alone, under the provisions of section 18 of chapter 50 of the Code. That section reads: "Subject to the provisions of the sixteenth section of this chapter, a justice shall have jurisdiction of actions on bonds given pursuant...
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