Wilson v. Young

• Decision Date: 17 March 1894
• Citation: 25 S.W. 870,58 Ark. 593
• Parties: WILSON v. YOUNG
• Court: Arkansas Supreme Court

25 S.W. 870

58 Ark. 593

WILSON v. YOUNG

Supreme Court of Arkansas

March 17, 1894

Appeal from Saint Francis Circuit Court, MATTHEW T. SANDERS, Judge.

Affirmed.

Geo Sibly for appellants.

1. The demurrer should have been sustained to the complaint. Secs 3061 and 3062, Mansf. Dig., .are taken from the Rev. St. ch 60, secs. 62, 63, and there must have been loss or damage to the execution creditor before he can recover. Murfree on Off. Bonds, sec. 494.

2. The action did not survive, Ib. sec. 654. It did not survive at common law, and is not made to survive by statute. 96 N.Y. 323; 13 S.Ct. 232.

3. Secs. 62, 63, ch. 60, Rev. St. are repealed by the Code. 10 Ark. 591; 31 id. 17; 46 id. 438, 448; 47 id. 491.

4. The return was made in due time, though not filed in time.

James P. Brown for appellees.

1. The complaint was framed after the one approved in 40 Ark. 377, in 44 id. 175, and in 47 id. 373. The liability of a sheriff for failing to return an execution is fixed.

2. That the action survived is plain from a reading of the statute. Mans. Dig. secs. 5223-4.

3. The case of Huntingston v. Attrill, 13 S.Ct. 232, does not support the appellant's contention. Its reasoning is conclusive that the action does survive under our statute.

MANSFIELD, J. Wood concurs in the dissenting opinion. BUNN, C. J., dissenting.

OPINION

MANSFIELD, J.

This was an action against the administrator of D. M. Wilson, late sheriff of St. Francis county, and the sureties on his official bond, for his failure to return, according to law, an execution issued on a judgment of the circuit court of that county in favor of the appellees. The complaint was filed under section 3061, Mansf. Digest; and, after alleging the facts necessary to a recovery under that statute, as against a sheriff and his sureties, it shows that Wilson died after the return day of the execution, and that administration upon his estate was granted to the person sued as his personal representative.

The section of the digest mentioned above provides that if the officer receiving an execution shall not return it "on or before the return day therein specified," he "shall be liable and bound to pay the whole amount of money in such execution specified;" and the next succeeding section (3062) provides that any person aggrieved by the non-payment of such amount "may have his action against the officer and his sureties upon his official bond." (Mansf. Dig., 3062.)

A demurrer to the complaint, on the special ground that it stated no cause of action against the administrator of the deceased sheriff, was overruled, and, the defendants having answered denying the failure complained of, the cause was tried by the court without a jury. The finding being for the plaintiffs, they recovered the amount specified in the execution, with interest at the rate borne by the original judgment.

It is conceded that the execution was not filed in the clerk's office within the time in which the law required it to be returned; ^[1] and the only fact urged as showing error in the court's finding is that a return dated before the return day was indorsed upon the execution. But this court has held that the mere indorsement of a return upon the execution does not avoid the liability of the sheriff for a failure to make an actual return to the clerk of the execution itself. Atkinson v. Heer, 44 Ark. 174. And in the present case it is not contended that an actual return was either made or attempted within sixty days from the date of the execution.

The correctness of the judgment is denied here, not only on the ground stated in the demurrer, but on two additional grounds. The first of the latter is that the statute on which the action is based was by implication repealed by the enactment of the Civil Code; and, in the second place, it is argued that, conceding the statute to be in force, the sureties of a sheriff cannot be made liable under it except where the execution plaintiff has sustained an actual damage.

The statute embraced in the sections referred to (Mansf. Dig. secs. 3061, 3062) has been treated as an existing law of this State, and its penalty enforced, in cases determined here since the adoption of the Code; and it does not appear to us that there is any repugnancy whatever between it and the Code provisions cited as having accomplished its repeal. ^[1] Jett v. Shinn, 47 Ark. 373, 1 S.W. 693; Hawkins v. Taylor, 56 Ark. 45, 19 S.W. 105.

In Hawkins v. Taylor, just cited (56 Ark. 45), the proceeding was by motion, under sections 3963--4, and appears to have been against the sheriff alone. The latter sections are from an act of the general assembly imposing upon the officer and his sureties a greater penalty than the act from which sections 3061-2 are taken, and provide for its recovery by summary judgment. As pointed out in Hawkins' case, the penalty recoverable under sections 3963-4 is for a failure to make any return at all of an execution; while that of section 3061 is recoverable by an ordinary action at law prose-cured upon complaint and summons, and is for a failure to return an execution on or before "the return day therein specified." Hawkins incurred the penalty inflicted by section 3061, and on his appeal a judgment was entered against him here for the amount of the execution he failed to return, and interest, but not for the damages claimed under sections 3963-4. The court ruled that the motion of Taylor contained all the allegations essential to a complaint under section 3061, and that the defendant had waived the issue and service of a summons by entering his appearance. There was no suggestion in the opinion of the court that Hawkins' sureties would not have been held equally liable for the penalty with himself if they had been made parties. And in Atkinson v. Heer, 44 Ark. 174, S. C., 40 Ark. 377, the severer penalty inflicted by sections 3063-4 was recovered alike against the sheriff and the sureties on his official bond. Although the proceeding in Atkin-son's case was summary, it was, as to the creditor, remedial; ^[1] and being, like this, upon the bond of the officer, we are unable to see how the mode by which jurisdiction was acquired over the persons of the defendants can affect either of the questions we are considering.

But Norris v. State, 22 Ark. 524, and Jett v. Shinn, 47 Ark. 373, 1 S.W. 693, were actions, in the usual form, against the sheriff upon his official bond, and, like this suit, were brought under section 3061 for failure to return an execution within the time prescribed by law; and in both those cases the penalty of the statute was enforced as well against the sureties as against their principals. This was done in obedience to a plain and express requirement of the law; and, if further authority is needed to show that the rule contended for by the appellants cannot prevail in a proceeding such as this upon the official bond of the sheriff, we may cite the case of Christian v. Ashley Co. 24 Ark. 142 at 142-147. There the action was against Norris, a delinquent collector, and the sureties on his bond, to recover the amount of certain revenue due to the county, together with a heavy penalty imposed by statute for his delinquency in failing to pay it over; ^[2] and it was contended that the sureties were not liable for the penalty. In holding that they were liable, the court said: "The condition of the collector's bond is for the faithful performance of the duties of his office, and for the well and truly paying over all moneys collected by him by virtue of his office. It is true that the condition of the bond does not recite that either the collector or his sureties shall be liable for any penalties for his failure to pay over moneys collected by him, but the parties must be understood to contract in reference to the law in force at the time the bond is executed. The law clearly imposes penalties upon the delinquent collector, and we think it was the intention of the legislature to make the sureties liable for the amount of penalties imposed upon him for his delinquencies."

This decision is also directly opposed to the position of the appellants here as to the survival of the cause of action. They contend that it did not survive against Wilson's administrator because it was for a tort. But the default of Wilson was certainly not more tortious than that of Norris; nor did the bond on which Norris and his sureties were sued embrace any element or characteristic of a contract that is not also found in the bond executed by these sureties and their principal. It will be noticed that the court regarded Norris' delinquency as the breach of a contract; and for the same reason the failure of Wilson to perform an official duty, although treated as a tort by the statute imposing the penalty in question, was a breach of the contract he and his sureties entered into when they executed the bond on which this suit was brought. ^[3] The condition of his bond was that he would "well, truly and faithfully discharge and perform the duties of his office." ^[4] The laws defining those duties were, in legal contemplation, as much a part of his contract as if they had been recited in the bond; ^[5] and he and his sureties must therefore be held to have bound themselves, not only that he would perform the duty which the complaint charges he neglected, but that they would pay the penalty incurred by its non-performance. It is therefore not improper to consider the statute as if it were a stipulation of the parties liquidating the damages recoverable for the breach complained of.

Such is the effect given to a similar statute by the Supreme Court of Illinois in Robertson v. County Commissioners (5 Gilm. 559, 569) which was an action upon the official bond of a constable...