44 Mich. 45 | Mich. | 1880
Lead Opinion
This is an action upon the official bond of Martin W. Brock, late sheriff of Bay county, brought by Houghtaling and Komeyn, who allege as their injury, the neglect to levy an execution issued to him upon a judgment in their favor, and a false return thereon.
The case in the court below turned upon the validity of the bond, which unfortunately had not been framed in conformity to the statute. The statute requires the bond to be given to the people of the State in the penal sum of ten thousand dollars, with condition that if the principal obligor shall well and faithfully in all things perform and execute his office of sheriff during his continuance in office by virtue of his election, without fraud, deceit or oppression, and pay over all moneys that may come into his hands as sheriff, then the obligation to be void, otherwise of force. Comp. L. § 551. The purpose of the bond is sufficiently indicated by the condition: it is to protect and give indemnity to all persons in whose favor a duty’- may arise, to be performed by the sheriff, and who may be damnified by neglect or failure in performance. The State, or what is equivalent, the people of the State (People v. Love 19 Cal. 676), is made the obligee, as mere naked trustee for those who might become entitled to the protection of the bond, and who of course can never be known at the time the bond is taken, but will be pointed out by such subsequent events as charge the sheriff with a duty in their favor.
The statute of 1846 required this bond to have the approval
The defect in the bond now under consideration is that it names the county of Bay as the nominal trustee, instead of the State. For this reason it is said to be absolutely void, and the parties who have relied upon it as security, who themselves had and could have no voice or influence in shaping or taking it, but who had a right'to suppose that the public authorities charged with a duty in the premises would correctly perform that duty, are now, in consequence of this error, left to suffer the loss of important. rights without redress. It seems at first blush a very small error to have such important consequences; for the obligee named in the bond has no active duty whatever to perform, being neither consulted when the bond is taken, nor afterwards when it is sued, and having in fact no control whatever over it, except as a public officer holds it for safe-keeping.
If the several duties which the sheriff is called upon to perform could only arise because of the statute requiring the giving of the bond, there would be abundant reason for saying that until a bond in conformity with the statute was produced, no recovery could be had. But this statute does not impose the duties; they would be the same if no official bond were required, and a sheriff de facto is charged with them under the same circumstances as is a sheriff de jure. It needs no statute to enable the officer to give a valid bond to perform any such duty; and had Brock executed to Houghtaling and Bomeyn a common law bond conditioned that he would duly levy and return the execution they placed in his hands, there could have been no doubt of its validity. United States v. Tingey 5 Pet. 115; Thompson v. Buckhannon 2 J. J. Marsh. 416; Governor v. Allen 8 Humph.
But it seems to me that this bond may be supported on another ground. The taking of the bond is by the board of supervisors, and the approval of the form and security is confided wholly to that body. If they decide to take one the form of which is not what it should be, and it is invalid in consequence, there is and can be no redress whatever for those who may be injured. The duties of the board are guasi judicial, and no action can be predicated upon an erroneous performance. Van Deusen v. Newcomer 40 Mich. 90, 135 ; Raynsford v. Phelps 43 Mich. 342. But the very fact that they are protected in acting upon their judgment, is a reason why the public also should be protected by their judgment. If a mere ministerial officer through his negligence or failure to obey the statute causes damage, he is held responsible for it, and if parties must perforce accept the judgment of a judicial officer or board, they ought to be safe in relying upon it, especially when they can have no opportunity to object .or complain.
Now this guasi judicial board, in taking and approving the official bond of a county officer have decided that it is proper to name the county therein as obligee. In doing so they have not complied with the strict letter of the law,
The judgment must be reversed, with costs, and a new trial ordered.
Dissenting Opinion
dissenting. I agree with the circuit judge that the declaration shows no cause of action. The law
The general principle is indisputable that no one but the party having the strict legal title to the cause of action can be plaintiff, and that suing in the name of one and alleging the cause of action as in another is a fatal contradiction (1 Chitty’s Pl. 2, 3; Forrest v. O'Donnell 42 Mich. 556); and this principle is always applicable unless the case is taken out of it by some special regulations, and there are no such provisions for a suit in the name of a county, based on a bond for the official good behavior of a sheriff.
Where the people of the State are the real obligees, a suit in their name may be maintained on the bond for the use and benefit of any one injured by the default or misconduct of the sheriff in his office, and in that case “ such party shall be deemed the plaintiff in such action.” Comp. L. ch. 209 § 1 et seq.; Jackson v. The People 6 Mich. 154. The jpower in that instance is given by statute, and would not
In case the beneficiary sues in the name of the obligee for a cause of action with which, as the same is set forth, the obligee has no connection, the aid of the statute is indispensable ; and where, as here, it does not apply, the nominal plaintiff must be considered as the real plaintiff in judging of his right to sue on the cause of action set up, and the suggestion that the suit is for the benefit of others cannot avoid the want of legal title in him apparent on the face of the declaration. Farwell v. Dewey 12 Mich. 436; Clay Fire & M. Ins. Co. v. Huron Salt etc. Co. 31 Mich. 346; Kelly v. The State 25 Ohio St. 567; The State for the use of the Justices of the Levy Court of Baltimore County v. Dorsey et al. 3 Gill & J. 75; Inhabitants of Northampton v. Elwell 4 Gray 81.
The books contain instances where actions have been sustained, notwithstanding a variation between the denomination of' the obligee in the statute and in the'bond. But this has been on the ground of there being no difference in effect, the essence of the ruling being that either name denoted the same governmental agency or sovereignty: Treasurers v. Stevens 2 McCord 107; Tevis v. Randall 6 Cal. 632. So too it has been held that the same corporation might under some circumstances be made a party in legal proceedings, under either of two names, each having the requisite legal property to identify it. Lyell v. Supervisors of Lapeer County, 6 McLean 446 ; Johr v. Board of Supervisors of St. Clair County, 38 Mich. 532. These decisions are not applicable here.
But it must not be implied from these considerations, which are urged to show that the bond is not suable in the name of the county, that it is decided to be invalid. That point is not involved. The transaction stands on grounds peculiar to itself. The requirement of the proper obligation is an expedient of government to afford protection to suitors, and is of a public nature. The obligation prescribed does not spring from the mere business concerns of individuals, or from any of those arrangements of personal or private' interest which are the sources of other classes of obligations. It is something which forms a part of the machinery of administration. It is expressly required of the sheriff, and its character and scope are previously ascertained by law. No room is left for any negotiation or speculation about the terms. They are given by the statute, and as stated heretofore, the instrument is directed to be made to the people of this State, and except in Wayne county, the business of approval is devolved on the board of supervisors. In performing this function it is incumbent on them to see, not only that the sureties are sufficient, but that the essential matters as to the contents agree with the statute; and in this they are called to act as agents of the public and guardians of its interests. The named obligees are contemplated as having nothing more than the legal title, the beneficiary being regarded, in case of a suit, as the plaintiff in interest and controller of the action, and the suit and judgment as his suit and judgment. •
I perceive no obstacles that are not rather formal and technical than substantial. It would be different with a case originating in another way and not subject to the group of considerations which depend on the nature of the obligation and the statutory provisions with which it is inseparably connected. There was nothing for the judgment or discretiorf of the obligors. There were no terms to be the subject of discussion. The required security was precisely liquidated by law, and nothing .more was necessary than to fill the mould, and this the parties were bound to know. They were acting on the call of the law, and it must be intended that it was their purpose to comply with it and not evade it. The case not being one in which the parties might shape their undertaking to suit themselves, the door is closed against all claims based on the assumption that their position entitled them to exercise option. Whether they succeeded or not, their design in executing this bond was to satisfy the statute.
The main stumbling-block seems to be the seal. But' the fact that the instrument is under seal, though once a weighty circumstance, is not a matter .of much importance now. The ancient significance of private sealing has almost wholly disappeared, and so far has respect for it declined that the Leg
The theory suggested of regarding the county, for the purpose of the question, as the agent of the people of the State in taking the bond, and then implying a right to sue on it in the name of the people as the principals or substantial obligees, was not presented in La Grange v. Chapman, supra, and I see no other theory on which the bond can be sustained.
Under this view there may be a question upon the effect of the judgment. It may be claimed that Houghtaling and Eomeyn are concluded. That does not appear to me the necessary legal result. The present action, on the view I take, is. determined. But as the case was brought to an end by the refusal to admit any evidence, and the ruling was authorized, not because the bond was invalid and could not be sued on for the benefit of Eomeyn and Houghtaling in the name of the people, but because it could not be so sued on in the name of Bay county, the effect is not final, and the judgment cannot be regarded as a bar to a new suit in the name of the people.
In my opinion the judgment should be affirmed, with costs.