17 Colo. 16 | Colo. | 1891
delivered the opinion of the court.
Delivery is undoubtedly essential to the validity of a bond, whether it be given in perfecting an appeal or.for some other purpose. In providing for statutory bonds, the law usually directs that some official, who is a disinterested third party, shall approve the sufficiency of the sureties executing the same. It is contended in the present case that the omission of the clerk’s approval from the appeal bond, coupled with his assurances to the sureties, avoided all liability on their part to the obligee. The correctness of this contention cannot be conceded.
First. The approval of a statutory bond by a designated
Most of these cases relate to the bonds of public officers. But Mr. Murfree in his excellent work on Official Bonds at sec. 36 classifies appeal bonds, replevin bonds, and the like with technical official bonds and declares them, in the absence of statutory differences, subject to the same general rules of law. Certainly the omission of a formal approval ought not to affect - the rights of the - individual obligee as against the sureties more injuriously than it does those of the people in suits upon public official bonds.
The same author at sec. 48 says: “ And in like manner the approval-of the bonds of officers generally by the appropriate tribunal -is necessary, not to the validity of the bonds, but to the -right of the officers to exercise the powers, and discharge thé duties of their offices. In this, 'however, as in other cases, acceptance of the bond may be presumed
With reference to the last foregoing proposition, we observe that while in each of the cases cited by the author to support the same, there appears to have been an affirmative verbal or written declaration of the obligee concerning the sufficiency of the sureties, the rule must a fortiori apply in cases where the obligee’s satisfaction is quite as clearly expressed by conduct instead of words.
Had the clerk of the county court transmitted the case to the appellate tribunal without any formal approval of the bond, either by himself or the court, and had plaintiff in error without objection proceeded to trial de novo, the approval would probably have been either presumed from the conduct of the clerk in'filing the bond and transmitting the case or treated as waived by the conduct of plaintiff in error. The understanding between the sureties and the clerk of which plaintiff in error was ignorant, would not in such case have been permitted to .cancel the liability of the sureties to him.
Under the circumstances here presented, we are clearly of the opinion that defendants in error are estopped from questioning the validity of the bond. They voluntarily executed this instrument as sureties, even attaching their justifications thereto. They then of their own free will unconditionally delivered it to one of the Kings, a principal and co-obligor therein, well knowing the use for which it was designed and the liability to be incurred. King, as they undoubtedly supposed he would, unconditionally delivered it to the clerk of the county court for the purpose of perfecting his appeal. Thus there were neither conditional nor escrow features connected with the original execution or delivery. The bond was filed by the clerk, an act that should be performed only after approval, and which may be taken as prima facie evidence of the intent to approve. Subsequently the court, being entirely ignorant of any effort on the part of defendants in error to procure a release from liability, on motion of the appellants and principal obligors, entered the order approving the same nunc pro tune as of the date of filing. Defendants in error made no effort to remove the instrument from the files, or to procure an order of release, or to notify
Plaintiff in error was seriously injured by the conduct of defendants in error in the premises. Relying upon the sufficiency of the bond, he refrained from proceeding to collect his judgment and in good faith in the district court re-litigated the cause de novo. The bond was, whether rightfully or wrongfully we do not determine, instrumental in the discharge of his attachment levy and garnishee process. We are not informed of the financial condition of his judgment debtors when the appeal was taken, but if it be assumed that they were then insolvent and that he could not, even aided by his attachment proceeding, have collected his debt, yet he incurred large additional expense and annoyance as well as loss of time in conducting the further litigation. If a case could ever arise where in this connection an application of the doctrine of estoppels in pais is justifiable, the present would seem to be such a case.
We are aware that there are decisions announcing views apparently in conflict with the foregoing; notably, People v. Bostwick, 43 Barber, 1, afterwards affirmed by the court of appeals. But we are fully sustained on principle by State v. Peck, 53 Me. 284, Millet v. Parker, 2 Metc. (Ky.) 608, and Brown et al. v. Murdock et al., 16 Md. 521. These opinions, especially the one in State v. Peck, review in extenso the cases bearing upon the subject. The opinion in Millett v. Parker is severly criticised in People v. Bostwick; but the learned judge who pronounced the views of the court in State v. Peck in turn ably challenges the reasoning in People
Our conclusion is, that when the surety voluntarily executes an appeal bond and delivers it unconditionally to the principal therein named, and the principal without condition delivers it to the clerk, who receives it and files it, and it is during the same term approved by an order of court, if appellee, without fault on his part, retying upon its validity in good faith litigates the appeal, and incurs additional labor and expense, the sureties are estopped from setting up in a suit by appellee an agreement with the clerk or appellant, of which appellee had no notice or knowledge.
There is no disposition to undervalue the importance and usefulness of statutory provisions relating to the approval of bonds. We do not intimate that these provisions are directory merely. We simply hold that in the absence of an unmistakable legislative intent to make the approval an absolute sine qua non to the validity of the bond for any purpose, this statutory provision is not so far mandatory as to become a shield for the protection of actual or constructive fraud.
We shall refrain from property characterizing the conduct of the clerk of the county court in the premises. It is to be hoped that there are palliating circumstances not shown by the record. His officious advice to defendants in error against remaining sureties, and his failure to notify plaintiff in error or the court of his understanding with the sureties, are deserving of censure. He should not have filed the bond before its approval, or have transmitted the cause to the ‘appellate court without explanation. He misled defendants in error who were doubtless acting in good faith, and is largely responsible for the present litigation with its attendant expense.
The judgment is reversed and the cause remanded.
Reversed.