80 Wis. 575 | Wis. | 1891
The appellant sues in replevin for a stock of goods unlawfully taken and detained by the respondent. The respondent • justifies the taking by the service thereon of several writs of attachment and. execution, as sheriff, in cases in favor of se'veral plaintiffs against one Armstrong
The only question, therefore, is whether the respondent can make said statute available in bar of this action by the appellant as a stranger to the attachments and executions claiming the ownership of the goods. The learned circuit court decided correctly that said statute is applicable to such a case, and overruled the demurrer. The statute reads as follows: “Within three years: An action against a sheriff, coroner, town clerk, or constable, upon a liability incurred by the doing of an act in his official capacity and in virtue of Ms office, or by the omission of an official duty, including the nonpayment of money collected upon execution. But this section shall not apply to an action for an escape.” Was the taking of these goods, by the respondent as sheriff, upon the attachments and executions, in virtue of Ms office? I have made these words emphatic, because the question depends solely on their true meaning.
This court, by the opinion of the present chief justice in Gerber v. Ackley, 37 Wis. 43, defined these words as “ acts done witMn the authority of the officer, but in doing them he exercises that authority improperly, or abuses the confidence which the law reposes in him.” Acts colore officii are defined in the same opinion as “ where they are of such a nature that Ms office gives Mm no authority to do them? It is foreign and confusing to the question to define acts colore officii. Acts vvrtute officii only are protected by the statute. We might as well define acts which are of neither class. It is sufficient if we determine what acts are within the statute. In the above case the plaintiff had sued the city marshal for the taking of certain property, and the defendant attempted to justify the taking, but averred only that he took the property “ by virtue of an alleged writ of
In Cummings v. Brown, 43 N. Y. 514, the decision in People v. Schuyler, 4 N. Y. 173, was approved, and this case presented the same question. The ninety-third _ section of the Code contains the same provision of our statute of limitation as to such cases. Coddington v. Carnley, 2 Hilt. 528, is to the same effect. In Charles v. Haskins, 11 Iowa, 329, it is held that the sureties on the official bond of the sheriff are liable for his having levied the attachment on the property of the plaintiff, a stranger to the writ, on precisely the same ground; and the same is held in Van Pelt v. littler, 14 Cal. 194, in a suit on a constable’s bond by a stranger to the writ for such a trespass; and the same in Horan v. People, 10 Ill. App. 21. In Daniel v. Wilson, 5 Term R. 1, an excise officer, in pursuit of smugglers, arrested an innocent third person. The question was whether tb e one month notice ought to be given before suit, as in cases where the act was done “ in the exeeuUon of his ojfoeS It was held to be within the statute. In Weller v. Toke, 9 East, 364, one magistrate committed the plaintiff to custody for not filiating his bastard child, upon a summons to appear before himself, when the law required two magistrates to act in such a case. It was held that he acted by virtue of his office, because he had authority to act in such a case, although he could not act alone, and was.entitled to notice before suit. It is held in Turner v. Sisson, 137 Mass. 191, that a constable seizing the goods of one, on a writ against another, was acting officially by virtue and under color of his office. In Norris v. Merse-reau, 74 Mich. 687, — a similar case,— the holding was .the
In Kendall v. Aleshire, 28 Neb. 707, the sheriff had a warrant for the arrest of the plaintiff in Nebraska. The plaintiff was in Kansas, and the sheriff represented to him that he had an extradition warrant for his arrest, and he submitted to such arrest and returned.with the sheriff to Nebraska. It was held that the sheriff had a warrant for his arrest in Nebraska, but that he had no right to arrest the plaintiff on it there, as he had fraudulently induced him to return to that state; and that the act of the sheriff in so wrongfully arresting the plaintiff in that state was vwtute officii, and for it the sureties on his bond were liable. This case illustrates the principle of an official act by virtue of the office, in application to. this case, very clearly. The sheriff had a warrant and authority to make the arrest, but for certain reasons in pais had no right to make the arrest upon it as he did. In this case the sheriff had lawful writs of attachment and execution,, but had no right to .seize the property of the plaintiff on them.
In Parton v. Williams, 3 Barn. & Ald. 330, the constable, with a warrant to take the goods of A., took those of B., and it was held that he acted by virtue of his office, and was protected by a similar statute of six months. In Theobald v. Grichmore, 1 Barn. & Aid. 227, a constable, having a warrant of distress against the plaintiff,- unlawfully broke and entered his dwelling-house. It was held that he was acting in pursuance of his authority, but exceeded it, and that the act was virtute officii, and protected by the six
In the above cases against the sureties on the bond of the sheriff or constable, the conditions of the bond were such that the principle is precisely the same as in this case, and the liability of the sureties and the statute of limitations rest upon the same ground. Such cases are, therefore, in point. The above cases in other states are cited to strengthen, if they need it, the above decisions of this court clearly in point.
The learned counsel of the appellant may have cited some cases in point the other way, but most of them have application only by loose and general language in defining the terms colore and virtute officii, when the facts are neither parallel nor analogous. People ex rel. Comstock v. Lucas, 93 N. Y. 585, is like Taylor v. Parker, 43 Wis. 78, and depended upon the conditions. of the bond. In Morris v. Van Voast, 19 Wend. 283, the sheriff was sued in trespass for taking the property of the plaintiff on a writ of replevin against him, and the sheriff pleaded this statute of limitations. The court held that he acted colore officii only, because there was no bond given with the writ, and therefore he had no authority to take the property. It follows from the decision that, if the bond had been given, the act would have been virtute officii. Ohio v. Jennings, 4 Ohio St. 418, supports the doctrine contended for by the learned counsel of the respondent. It is held that the sureties on the sher
It seems to ine that this principle is sustained by reason as well as by great preponderance of authority. It is impossible to find any case that would be protected by the statute of limitations if this is not. The statute could have no application or force on any other principle. If the sheriff had full and lawful authority, and executed that authority properly, then he would not be liable; and he needs no statute of limitation. The sheriff has lawful process and executes it, and makes his return, and .it becomes a record. These are all within his lawful authority. He may be liable for an abuse of his authority or oppression, for arresting the wrong person or taking the property of a stranger, or for making a false return. If the sheriff is not liable for these consequences of the execution of his lawful authority, he is not liable at all. The respondent here held valid writs of attachment and execution against the property of Armstrong. He executed the writs by taking the property as the property of Armstrong. In doing so he performed his official duty, and according to the forms of law. He
By the Court.— Tbe order of tbe circuit court is affirmed.