| Or. | Dec 15, 1877
We will consider the first and fourth causes of demurrer together, because no other reason is presented by counsel for the respondents,'to sustain the objection to the complaint that the court has no jurisdiction of the subject of the suit, than those relied upon to show that the complaint does not state facts sufficient to constitute a cause of suit. It was not claimed in the argument that if the complaint states sufficient grounds to entitle the appellant to equitable relief, the circuit court did not have the jurisdiction to grant it. Being a court of general jurisdiction, and being invested by section 9 of article 7 of the constitution with all jurisdiction vested by law in some other court, in the absence of any contrary showing, its jurisdiction will be presumed.
Do the facts alleged in the complaint constitute a ground
On the other side, counsel for respondents contend that the right to maintain an action on the official undertaking of an officer is purely statutory. That the statute which gives the right gives the only remedy. That the fact of the loss of the undertaking, while it renders it impossible for plaintiff to obtain leavé of the court to bring his action at law, does not give him the right to proceed in any other manner than that prescribed by the statute. Upon this theory they claim that the appellant is in the position of a person having a legal right which he can enforce neither at law nor in equity. If this view of the law were correct, the case is a hard one. If the facts alleged in the complaint are true, plaintiff, acting with ordinary prudence, relying upon the presumption that the clerk would or had correctly performed his official duty, has, through the delinquency of that officer, lost a large amount of money, and when he seeks redress upon the undertaking which the law required the officer to give as a security against such delinquencies, finds that while he has the right to the benefit of that security, he cannot enforce that right because some one has stolen the undertaking and destroyed the official copy.
It is necessary for us first to ascertain whether the appellant has any plain, speedy or adequate remedy at law. If he has any such remedy at law, the demurrer was properly sustained.' No equitable interposition was necessary.
Section 339 of the civil code provides that: “Before an action can be commenced by a plaintiff other than the state or the municipal or public corporation named in the undertaking or other security, leave shall be obtained of the court, or judge thereof, where the. action is triable.
It may well be doubted.whether any other evidence could be admitted to supply the place of the “certified copy of the undertaking” required by the section just quoted. The proceeding to obtain leave is ex parte, and the statute expressly states upon what evidence the court shall act.
But while we do not now express an unqualified opinion upon the question whether or not the court to which an application is made for leave to commence an action upon an official undertaking may, in case of the loss of the undertaking, receive secondary evidence of its contents, we think the right sufficiently doubtful that it cannot well be said that it furnishes a plain, speedy or adequate relief within the meaning of section 376 of the civil code. Lost instruments under seal furnished a common ground for interposition of equity at the time when it was held at common law that there could be no remedy at common law upon a lost bond, because there could be no profert of the instruments, without which the declaration would be fatally defective. (1 Story’s Eq. Jur. 81.)
We think that the case at bar, in which no action can be commenced, because a certified copy of the undertaking cannot be had, presents a case for equitable interposition differing but little from the case where an action at law could not be maintained upon a bond, because the courts held that it was essential that the complaint should make profert, and the bond being lost profert could not be made. Yet that was an ancient ground of equitable relief, which having once conferred jurisdiction, the courts of equity still retain it.
In the case of Cornell v. Keiser, tried by this court at the December term, 1873, and not reported, this court sustained jurisdiction of a court of equity to establish a lost deed, although it was conceded that under our statute upon proof of its loss secondary evidence might be received of its contents. The decision was placed upon the ground
We are unable to see any reason why the jurisdiction of courts of equity to establish lost instruments, should not in a proper case extend to a lost official undertaking. It is not sought to reform the undertaking, nor in any way to supply any defects in its execution, but taking it just as the parties made it, we are called upon to relieve plaintiff from the consequences of its loss, by as far as possible establishing it just as it was made, as evidence of the contract and obligations of the parties to it. Some objection is made to the prayer for relief in the complaint. Perhaps it would have been better to pray in the first instance that the decree of the court should establish the lost undertaking, in order that it might be used for the purpose of obtaining leave of the court to sue upon it, and should enforce the undertaking as established.
The prayer of the complaint is only that plaintiff may have a decree against the defendants for the payment of the money which the complaint shows they are liable to pay to him on their undertaking and for general relief. We think that under the familiar principles of equity jurisprudence, that a court of equity which once acquires jurisdiction for one purpose will retain it for all purposes necessary to afford complete relief, the court could in the first instance decree the establishment of the official undertaking alleged in the complaint to be lost, in order that leave could be obtained to sue on it, and that having acquired jurisdiction for that purpose it could proceed to enforce the instrument so established, by decreeing that defendants should pay to plaintiff such sum as it should be found that they were liable to.pay upon it. It is true that the complaint merely prays for this final relief, but it seems to us that under such a prayer it is competent for the court
The third ground of demurrer is that the court had no jurisdiction of the persons of defendants. We can see no reason whatever for this objection. The defendants appeared in the suit by their attorneys. That was all that was necessary to give the court jurisdiction of their persons. We consider the second ground of demurrer last. It is that the suit was not commenced within three years after the cause of suit occurred. In support of this objection to the complaint it is claimed by counsel for respondents that this suit is governed by the limitation prescribed in subdivision 2 of section 7 of the civil code, which provides that “ an action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state, except where the statute imposing it prescribes a different limitation,” shall be commenced within three years.
If an action upon the undertaking would be barred by this provision, then this suit is barred, because section 378 of the code provides that “ a suit shall only be commenced within the time limited to commence an action, as provided in title 2 of chapter 1 of this code.” If this then is a suit to recover a penalty or forfeiture, it is barred by the statute of limitations, and the demurrer was properly sustained.
We do not think it is such a suit. Section 337 of the code provides that “ the official undertaking or other security of a public officer to the state or to any county, city, town or other municipal or public corporation of like character therein shall be deemed a security to the state or to such county, city, town or other municipal or public corporation, as the case maybe, and also to all persons severally for the official delinquencies against which it is intended to provide.” Section 338 provides “that when a public officer by official misconduct or neglect of duty shall forfeit his official undertaking or other security, or render his securities therein liable upon such undertaking or other security, any person injured by such misconduct or neglect, who is by law entitled to the benefit of the security, may maintain
It is under these sections that the rights of plaintiff to the benefit of the official undertaking described in the complaint is derived. It is deemed a security to him against the official delinquencies of the officer; that officer by his neglect of duty has rendered his securities liable to plaintiff. He or they have forfeited nothing. No forfeiture is given to plaintiff. He can recover what he has lost; no more. This suit is very different from the actions provided for by sections 342, 343 and 344 of the code, and which we take to be the actions limited by subdivision 2 of section 7 of the code, and by section 10 of the code.
The only ‘distinction between the actions of the same general class made by subdivision( 2 of section 7, and by section 10, is that when the action is given to the party aggrieved to recover, a forfeiture under a statute or to the state, with such party three years is the limitation, and when it is given generally to an informer, one year is the limitation. All these actions for forfeitures' are in the nature of qui tain actions at law, and are quite distinct from that class of actions in which the person injured by the official delinquency of an officer is allowed to resort to the official undertaking of that officer as a security for his loss.
It cannot be questioned that plaintiff could have brought his action against C. H. "Williams, the county clerk, for the damage he has suffered by his negligence, without resorting to the official undertaking. In such action the measure of such damages would be just the same as if the action had been brought on the undertaking; and yet in that case it certainly will not be claimed that the action would be to recover a penalty or forfeiture, or that the limitation prescribed for such action would apply. Yet the only difference between such action against the officer personally and that upon his official undertaking, is that in the latter action plaintiff seeks to avail himself of the benefit of his official undertaking as a security for such damages as he may recover.