Work v. Kinney

• Court: Idaho Supreme Court
• Writing for the Court: QUARLES, C. J.--
• Citation: Work v. Kinney, 71 P. 477, 8 Idaho 771 (Idaho 1902)
• Decision Date: 26 December 1902
• Parties: WORK BROS. v. KINNEY

71 P. 477

8 Idaho 771

WORK BROS. v. KINNEY

Supreme Court of Idaho

December 26, 1902

SHERIFF-OFFICIAL BOND-LIABILITY OF SURETIES.-The sureties upon the official bond of a sheriff executed to secure the faithful performance of his duties during one term of office are not liable for the delinquencies and defalcations of such sheriff during a former term of office.

SAME-ESTOPPEL.-A sheriff seized goods under attachment during one term of office, and he and the sureties on his official bond were sued by the attaching creditors, who alleged that said sheriff wrongfully sold such attached goods and converted the proceeds of the sale thereof to his own use and advantage and in such action judgment was rendered in favor of the attaching creditors and against said sheriff and sureties the sheriff was elected to succeed himself, and afterward gave another official bond; the attaching creditors sued the sheriff and his sureties on the latter bond, for the same cause of action. Held, that the attaching creditors, by reason of their former action, and adjudication therein, are estopped from suing for the conversion of such attached goods on the last bond.

EVIDENCE-OPINION OF APPELLATE COURT-ADMISSIBILITY.-The opinion of the appellate court is not admissible in evidence to prove facts in issue in an action.

EVIDENCE-DECLARATIONS AGAINST INTEREST.-The acts and declarations of parties against their own interest, whether made in, or out of court are admissible against them; those which are self-serving, or in the interest of the parties making them, are not admissible.

(Syllabus by the court.)

Appeal from District Court, Blaine County.

Affirmed. Costs awarded to respondents.

F. E. Ensign and Kingsbury & Kingsbury, for Appellants.

The law of this case is summed up by Chief Justice Taney in Bruce v. United States, 17 How. 437, 15 L. ed. 127, and in these words: "When Bruce received his second commission, if any money or property which he received during his former term of office still remained in his hands, he was bound to apply and account for it under the appointment which he then received. It was so much money in his hands to be disbursed and applied under his second appointment." In the case at bar, not only was there no evidence against the legal presumption that the sheriff was holding the money to be paid over to the party entitled to it at the time he entered upon his second term, but the evidence showed official acts in the way of answers, declarations and returns by the sheriff which estopped him and his sureties to deny the fact. (Boone County v. Jones, 54 Iowa 699, 37 Am. Rep. 229, 2 N.W. 987, 7 N.W. 155; Baker v. Preston, 1 Gilm. 235; State v. Grammar, 29 Ind. 530; Morley v. Town of Metamoria, 78 Ill. 394, 20 Am. Rep. 266; City of Chicago v. Gage, 95 Ill. 593, 35 Am. Rep. 182; Ingram v. McCombs, 17 Mo. 558; Watts v. Colquit, 66 Ga. 492; State v. Paul, 21 Mo. 51; State v. McCormick, 50 Mo. 568; State v. Moses, 18 S.C. 366.) A clerk of court neglecting to deposit his official moneys in the bank, as required by law, or to pay out in proper cases under orders of the court, is guilty of a continuing default, for which (without demand by the parties in interest) he and the sureties on his second and additional official bond are liable, although the moneys were received before the execution of such bond." (Murfree on Sheriffs, sec. 943.) "The liability of a surety on the official bond of the sheriff is dependent, not on the time when the fund which formed the subject of the default came to the hands of the principal, but upon the time when the default itself occurred." (Yoakley v. King, 10 Lea (Tenn.), 67; State v. Wall, 9 N.C. 20; Wentz v. Ledoux, 24 La. Ann. 131; Murfree on Official Bonds, sec. 219; Bruce v. United States, 17 How. 437, 443, 4 Myer's F. Dec., sec. 522; Kelly v. State, 25 Ohio St. 567.) The case at bar is one of those that sometimes reach the supreme court, which never ought to, from the fact that the trial court should not have allowed it. The jury should have been plainly told what their verdict must be, or the verdict should have been at once set aside, and judgment ordered by the court. There was not a particle of evidence that tended to show that the plaintiffs were not entitled to recover, while there was an abundance of evidence to show plaintiffs were entitled to recover. When, under the evidence, there is no issue of fact for the jury to find, the case need not be submitted to them. (Work Bros. & Co. v. Kinney, 7 Idaho 460, 63 P. 596; Coffin v. Hutchinson, 22 Or. 554, 30 P. 424; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Arimjo v. New Mexico etc. Co., 3 N. Mex. 427, 5 P. 710; Martin v. Ward, 69 Cal. 129, 10 P. 276; McCormick v. Holmes, 41 Kan. 265, 21 P. 108; Clancy v. Reis, 5 Wash. 371, 31 P. 971; Gildusleeve v. Atkinson, 6 N. Mex. 250, 27 P. 477; Commissioners etc. v. Clark, 94 U.S. 278, 24 I.. ed. 59; Corning v. Troy Factory, 44 N.Y. 577; Nichols v. Goldsmith, 7 Wend. 160; Grand Trunk Ry. Co. v. Nichol, 18 Mich. 170; Story v. Brennan, 15 N.Y. 524, 69 Am. Dec. 629.)

Lyttleton Price, for Respondents.

Upon the question of the plea of estoppel, the offhand way in which counsel disposes of it has induced its examination many times to try and find whether the stupidity was in the argument or in me in not being able to see the difference in the two actions, which counsel attempts to point out. In the light of the former opinions of this court, the argument referred to is astonishing. They deal with every fact involved here: the wrongful sale of all the goods; the conversion and the time of it; the return of the execution nulla bona, and the date of it; and every conceivable thing which in this case the court would have to consider and find to grant him the relief asked for. If this court were to give him the decision he asks, wherein would its opinion be changed in any particular from the opinion in the other case, except to say that the wrongful conversion was in 1889 instead of 1888, as heretofore decided? The estoppel rests upon the fact that plaintiffs pleaded and proved and recovered upon the same misconduct charged here, but committed at a different date from that which they seek to establish to enable them to recover here. The court will not overlook the fact that Kinney is defendant in both cases. Of course, if they are not entitled to judgment against Kinney in both, they are not entitled to judgment against his sureties in both. If the estoppel is good as to Kinney, it is equally good as to his sureties. Would it not be competent and a perfect estoppel for Kinney to declare: You recovered from me once on this transaction on identically the same allegations and proofs of my acts you accuse me of here. You said then I committed them in 1888. You cannot be heard to deny that my offense was committed in 1888, nor permitted to assert that it was in fact committed in 1889, or any other year than 1888, for the purpose of pursuing me to another judgment for the same misdoing.

QUARLES, C. J., SULLIVAN, C. J. Sullivan, J., concurs. Stockslager, J., took no part in the decision.

OPINION

The facts are stated in the opinion.

QUARLES, C. J.--

This action was commenced on the 13th of February, 1891, against P. H. Kinney, sheriff of Alturas county, and fourteen sureties on an official bond given by him as such sheriff on the sixteenth day of January, 1899. A number of the sureties died during the pendency of the action, and for this reason and other causes, the action was dismissed as to all of such sureties except the respondents S. J. Friedman, Charles Knaupp, John Murphy, C. J. Johnson. Charles J. Sherry, and Frank C. Coolidge. The plaintiffs, who are partners and merchants, had, prior to February 9, 1888, sold merchandise to one Warren P. Callaghan. The latter being indebted to them, they commenced an action in the district court, Alturas county, on the ninth day of February, 1888, to recover the sum of $ 1,685, with interest thereon, from said Callaghan and in said action sued out and obtained a writ of attachment to secure said amount, and placed said attachment in the hands of the respondent Kinney, as such sheriff. Acting under said attachment, said Kinney, as such sheriff, seized and levied upon a stock of merchandise of the value of over $ 4,000, and afterward, without execution or due authority, sold said merchandise, leaving sufficient in his hands to satisfy the debt of the appellants. On the second day of October, 1889, the appellants obtained judgment against said Callaghan for their said debt and interest, and obtained an execution, and placed the same in the hands of said sheriff, who afterward returned the same "No property found. " Said Kinney executed the bond sued on as sheriff for a term of office commencing the second Monday of January, 1889, and ending the second Monday of January, 1891. He had been sheriff of said county for the two preceding years, and had executed a bond, with sureties, for said two preceding years. The real defense pleaded in the answer is one of estoppel. The complaint in this action alleges: "9. On information and belief, that on or about the first day of April, 1888, the said Kinney, as such sheriff, had and held in his possession, taken and attached by virtue of said writ of attachment, personal property belonging to said Callaghan not exempt from execution, and not encumbered by any lien prior to the lien of said attachment, of great value, to wit, of the value of $ 4,000; and that afterward, to wit, about the first day of May, 1888, said Kinney, as such sheriff, sold and disposed of the said personal property of said Callaghan for about the sum of $ 2,000, and that the said Kinney kept and retained the proceeds of such sale until after the fourth day...