62 Neb. 325 | Neb. | 1901
This was an action in the district court for Douglas county against a constable and his sureties upon his official bond, for having taken insufficient security upon a replevin bond in a suit pending before a justice of the peace. The property taken in replevin was appraised at the value of $200, and the penalty of the replevin bond was double that amount. The replevin suit proceeded to judgment, before the justice, in behalf of the defendant for a return of the property, or, in case a return could not be had, for the value of the interest of the defendant therein which was adjudged to be $200 and for costs. Execution upon this judgment was issued and returned unsatisfied for want of goods or chattels whereof to levy the same. Thereupon the defendant in the replevin suit brought an action in the county court of Douglas county upon the replevin bond against the principal and surety thereon to recover damages for the breach of that bond on account of the failure of the plaintiff in the latter action to obtain satisfaction of his judgment in replevin. The suit upon the bond proceeded to judgment in favor of the plaintiff therein for damages and costs on account of the breach alleged, and upon this judgment, execution was also issued and returned unsatisfied for want of goods or chattels whereof to levy the same. Still subsequently, this action was brought in the district court for Douglas county against the constable and his sureties, upon the official bond of the former, to recover damages for a breach of that bond on account of the above related transactions, and because of the alleged insufficiency of the surety in replevin. An-SAvers Avere filed by the sureties admitting the official bond and official character of their co-defendant, Adams, but denying generally every other fact alleged against them. The answer of Adams denies the insufficiency of the surety upon the replevin bond and pleads affirmatively that he used due diligence in the matter of taking the bond and that he made diligent inquiry as to the financial worth and
It is first assigned for error that the court overruled an objection by the defendants to the introduction of any evidence on the ground that the petition does not state facts sufficient to constitute a cause of action, and it is argued in support of this objection, that the petition is fatally .defective in failing to set forth the suit upon the replevin bond and the failure of the plaintiff to obtain satisfaction thereby. The- petition, however, contained the following allegation; “The plaintiff alleges 'that said replevin bond given in said action, and signed by The Bates Company and C. D. Cannon, as obligors, was worthless and was not sufficient security, and that said obligors, The Bates Company and C. D. Cannon, were not sufficient surety, and that they and each of them were insufficient surety, and that in accepting said bond, said W. R. Adams, constable, took insufficient security to the plaintiff’s damage in the amount of the judgment and costs rendered in said action, to-wit, in the sum of $225.” The statute enacts that “if the officer deliver any property so taken, to the plaintiff, his agent, or attorney, or keep the same from the defendant without taking such security within the time aforesaid, or if he take insufficient security, he shall be liable to the defendant in damages.” Code of Civil Procedure, sec. 1040. The defendant in error contends that in an action
It is further objected that the petition does not allege the taking of insufficient security to have been wrongful or negligent. The reasoning applicable to the former objection applies in a measure to this also, but there is another consideration even more radical and conclusive for denying its validity. The statute above quoted enacts, without qualification or exception, that the officer shall be liable in damages “if he take insufficient security.” The official bond sued upon is conditioned as required by section 12 of chapter 10 of the Compiled Statutes, for the faithful discharge of all duties required of the officer by law. This court has held, after mature deliberation, that this condition requires of the principal, who is a custodian of public moneys, the absolute accounting for and payment over of such moneys coming into his official possession,
It is still further contended by the plaintiff in error that this action can not be maintained because, it is said, the justice exceeded his jurisdiction in the rendition of judgment in the suit in replevin. The answer to this objection is that the replevin bond was valid when executed; that it was afterwards sued upon in a court of competent jurisdiction and a judgment for damages recovered thereon for condition broken; that, however erroneous that judgment may be, it remains in full force and unimpeached by the parties thereto and that it is not subject to collateral at
There are other errors assigned in the brief of the plaintiff in error, but they have in effect been disposed of by what has been already said, and a specific discussion of them would serve no useful purpose. The judgment of the district court should be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.