31 Tex. 387 | Tex. | 1868
—There can be no serious doubt, we apprehend, that a sheriff and his securities upon his official bond are liable to any and all persons who may have been injured by his failure to perform the duties and fulfill the conditions undertaken and stipulated to be performed and fulfilled in the terms of the bond. For that purpose official bonds are required by law to be executed by the incumbents of office. Among those conditions and obligations of duty in a sheriff’s bond are, that he will “ due return make of all process and precepts to him lawfully directed,” and “ pay over all sums of money collected by him by virtue of any such process or precept to the persons to whom the same are due or their lawful attorney.”
For actual injury sustained by the clerk, the appellee in this case, the sheriff and his sureties were liable to him on the official bond in the form of action upon the bonds which the plaintiff in the court below chose to adopt. It is in the nature of a common-law action upon the covenants in the bonds, with breaches assigned for non-performance. To hold the securities of the sheriff responsible for any injury done by him to the clerk in the exercise of his office it was necessary for the clerk to sue upon the official, bond. But he had his election to sue the sheriff" for money had and
There are certain remedies given in the statutes by motion to parties who have suits, and who have been compelled to appeal to the courts to enforce their demands. These remedies by motion are whips placed in the hands of the party to the record to coerce the ministerial officer to the punctual discharge of his duty, under pain of being subject to these summary and punitory proceedings of three days’ notice, ten per cent, damages upon the amount and ten per cent, per month until paid, in addition to the original debt, interest and costs. The action in this ease is not by motion, but is founded upon the bonds. The clerk would have no right under the law to proceed by motion unless he were an actual plaintiff in the execution upon which the motion was based. In the case of De la Garza v. Booth, decided by this court at the fall term, 1866, [28 Tex.,478,] which, like this, was a suit upon the bond, and not a motion against the sheriff and his sureties, the court decided that, the party having elected his mode of remedy
The mere fact that the costs of the suit, incurred by the successful party, is taxed against the defendant in the execution which is issued, with the indorsement of the items of the bill of costs thereon, among which items are the fees of the clerk, does not give the clerk control over the execution; and, in legal contemplation, he is no party to it, and is not, therefore, entitled to the penal remedy by motion. He has, therefore, no claim to such damages.
The law gives appropriate and peculiar remedies to clerks for their fees. They have a right to exact security for costs of every suitor who institutes proceedings in his court, except of paupers and of the state. Moreover, if he has
The plaintiff in an execution is entitled to demand the whole proceeds of the execution from the sheriff, embracing all the taxation of costs against the defendant. It is the indemnity to the plaintiff for his liability to the officers of the court for the costs which he may either have actually paid them, in the progress of the suit, or which he may have secured to them in a hond for costs. The indorsement of the several items on the execution is the presentartion of the fee bill required by law before payment, which is designed to carry out the policy to afford a check upon the officers against charging excessive fees. The plaintiff and defendant in all suits are immediately and directly liable and responsible to the clerk for the costs incurred by them respectively.
It cannot be doubted, we think, that the payment of the whole proceeds of an execution to the plaintiff in that execution, costs and all, would entirely exonerate the sheriff from responsibility to the clerk and other officers of the court for the costs, and might be successfully relied upon either in a suit upon his bond or otherwise. It would be a literal compliance with the terms of the bond “ to pay over all sums of money collected by him by virtue of any such process or precept to the person to whom the same is due.”
In the suit upon the bonds the clerk had no right to recover from the sheriff and his sureties anything more than the actual amount of money belonging to the clerk, and which the sheriff had got into his possession by virtue of his office, and had refused to pay over on demand made, together with the interest thereon from the date of the demand. In the determination of the case in the court below, although the action was only a suit upon the bond, the principles of law applicable alone to the summary remedy by motion were applied to fjx the nature and extent of the liability of the sheriff" and his sureties. This was error. Wherefore the judgment is reversed, and the cause remanded and a new trial awarded.
Reversed and remanded.