60 Neb. 216 | Neb. | 1900
An opinion in this case was filed June 21, 1899, and is reported in .58 Nebr., 730.- The case has also once’prior thereto been before this court. Fire Ass’n of Philadelphia v. Ruby, 49 Nebr., 584.
A rehearing has been allowed on the application of the plaintiff in error, thereby requiring a re-examination of one of the questions involved. All questions in the case have heretofore been disposed of to our entire satisfaction, save the one of the alleged insufficiency of the petition to support a judgment against the sureties on the official bond of the defendant Ruby, as sheriff of the county where the action was commenced. We deem it, therefore, unnecessary to consider any other point to which our attention has been called, than this one.
In the former opinion, in the first paragraph of the syllabus, it was held that “in an action on the official bond of a sheriff, the petition should disclose the execution and approval of the bond, or facts showing a waiver of the approval of the bond, or facts which estop the sureties from urging its non-approval,” Fire Ass’n of
The petition under consideration alleges, “that the defendant, J. A. Ruby, was duly elected and qualified as sheriff of Phelps county, Nebraska, for the term commencing January 1st, 1890; that being required by law to give bond for the faithful performance of his duties, said J. A. Ruby as principal, and the other defendants herein as sureties, entered into a bond in the sum of ten thous- and dollars as required by law for the faithful performance of his duties as such sheriff. A copy of said bond is hereto attached, marked ‘Exhibit A,’ and made a part hereof. That during the term for which said Ruby was elected so as aforesaid, to-wit: on the 15th day of September, 1890, in the performance of official duties as sheriff of said county, he,” etc., the allegations quoted being followed by a statement of the acts complained of.
The petition was not attacked in the trial court, either by motion or demurrer. In their answers, the defendants allege that “said amended petition does not state facts sufficient to constitute a cause of action.” An objection was entered against the introduction of any evidence because of the alleged insufficiency of the petition, which was overruled and the case proceeded to verdict and judgment on the issues presented by the pleadings. If the petition states a cause of action against the sureties on the sheriff’s bond, all other questions having heretofore been determined adversely to the defendants, the judgment of the lower court must be reversed, and the cause remanded for a new trial.
The provisions of the Code of Civil Procedure as to the pleadings, as well as in all other respects, are to receive a liberal construction, to the end that justice may be administered to parties litigant. Sec. 1, Code Civil Procedure; Kepley v. Irwin, 14 Nebr., 300,
In the former opinion of this court, by Norval, present O. J., it is said, p. 731: “Had the plaintiff alleged that the defendants executed the bond, it might include, or cover, the performance of every act essential to the making and approving of the bond.” We assume this to be a correct expression of the law as to pleadings founded upon official bonds of the character under consideration, and the proposition is supported by both reason and authority.
Bouvier thus defines the word “execute”: “The term is frequently used in law; as,to execute a deed,which means to make a deed, including especially signing, sealing and delivery.” Anderson’s Law Dictionary defines the word “execute” as follows: “In strict legal understanding, when said of a deed or bond, always means to sign, seal and deliver.” Under each definition, it- will be noted, every act essential to a complete making and delivery of the instrument is included in the word “execute.” Robert v. Good, 36 N. Y., 408; Prindle v. Caruthers, 15 N. Y., 425; Clark v. State, 125 Ind., 1.
Reasoning from the hypothesis given, we will examine the petition in the case at bar. As has been heretofore noted, the petition does not in terms allege the making, that is, the signing of the bond, or its approval, filing
If, from the language used, it may fairly be inferred that all acts necessary to constitute a full and complete execution of the bond, including such intermediary steps as are essential to its validity and effectiveness, are alleged, then, as in the hypothetical statement, a good cause of action is stated by the petition. The only words used from which this deduction may be drawn are contained in the allegation that the defendants “entered into” the bond mentioned. The term “entered into” is of common use in legal phraseology, has a well defined meaning, and is frequently found in statutes, opinions of courts, and legal publications generally. Ordinarily, it is equivalent to the phrase “to become bound; or obligated by a bond, recognizance, contract,” etc. In the Century Dictionary the words “To enter into recognizances” are defined thus: “[In law] to become bound under a penalty, by a written obligation before a court of record, to do a specific act.” Other lexicographers give substantially the same definition. In the statutes of Nebraska the words “entered into” appear to be used interchangeably with, and as equivalent to, the word “execute.” Cob bey’s Statutes, 1891, secs. 243, 5005, 5071, 5254, 5478 and 5521. In Matthews v. Council, 96 Ga., 780, a petition alleging that “defendants entered into an administrator’s bond,” etc., was held good on demurrer for want of a cause of action. To the same effect are Greenville Co. v. Runion, 9 S, Car., 1; Condit v. Baldwins, 19 N, J.
The plaintiff in error also contends that it is unnecessary in the petition to allege approval of the bond upon which suit is brought, or words equivalent thereto. This point of the controversy is perhaps disposed of in the views already expressed; for if, as we are disposed to think, the words “entered into,” as used in the pleading quoted, are equivalent to, and interchangeable with, the word “execute,” they would embrace all the acts essential to a complete execution of the bond, including the intermediate act of approval. Since, however, in the former opinion, the case was affirmed as to the defendant sureties on the bond, because the petition did not state a cause of action against them, .in that it did-not contain an allegation that the bond was approved, or equivalent words or acts, showing a waiver of approval, or estoppel by reason of non-approval, it would be more ■ appropriate- in this opinion to directly dispose of that question also. We are to determine whether, in an action ,on an official bond against the principal and the sureties thereon, for a breach of its conditions, the approval of the bond by those charged with that duty, is a material averment which must be alleged and proved. While the approval of an official bond is essential as a step to the qualification of the person holding a public office, and a material allegation in a pleading by one whose title to office is challenged or in question, yet, the approval is not for the benefit of a surety, or in his interest, or for his protection. Therefore, in a suit upon an obligation signed by him, and under which his principal has assumed to discharge the duties of his office, ,such surety can not be heard to urge the want of approval to. his advantage, or as a ground
From a consideration of the foregoing, we are led to the conclusion that an averment of the approval of an official bond, or words equivalent thereto, in an action against a public officer and the sureties upon his official bond, is not necessary in stating a cause of action against the obligors; and that the conclusion reached as announced in the first paragraph of the syllabus in this case, reported in 58 Nebr., 730, should be and is hereby overruled. The cause is reversed as to all the defendants, and remanded to the district court for further proceedings in conformity with law.
Eeversed and remanded.
I adhere to the opinion filed on the former hearing. ’