42 Del. Ch. 209 | New York Court of Chancery | 1965
This is an action on the statutory bond of a former Register in Chancery for New Castle County, Delaware. Defendant Hicks and Massachusetts Bonding and Insurance Company have moved to dismiss on the ground that the action is barred by limitations. This is the decision on that motion.
The complaint, filed December 30, 1963, alleges the following facts: Hicks was Register in Chancery for New Castle County from January 1, 1957 to December 31, 1960. Before entering upon the duties of that office, Hicks filed a bond as required by 9 Del.C. § 9115(a), conditioned for the faithful performance of his duties, with Massachusetts Bonding and Insurance Company as surety. The statute requiring the bond provided that any person injured by breach of
10 Del.C. § 8104 provides: “No action shall be brought upon the official obligation of any * * * Register in Chancery * * *, against either the principal or sureties, after the expiration of 3 years from the accruing of the cause of such action.”
Defendants contend that Sonro’s cause of action accrued no later than December 1, 1959, the last day on which Hicks could have given timely notice to enable Sonro to produce evidence in support of the claim. Plaintiff Sonro contends that the cause of action accrued on December 3, 1962, the date of distribution. Plaintiff’s contention is founded upon the theory that it was not hurt and, therefore, had no cause of action capable of being sued upon until omitted as a distributee at the time of distribution.
It is generally held that an action sounding in tort accrues at the time when the tort is committed and that the statute of limita
These general principles have been quite uniformly held to apply in actions against public officers for breach of their duties. Many of the authorities are cited in the leading case of McKay v. Coolidge, 218 Mass. 65, 105 N.E. 455, 52 L.R.A. (N.S.) 701, Ann. Cas. 1916A, 883. To these may be added Baie v. Rook, 223 Iowa 845, 273 N.W. 902; Bank of Spruce Pine v. McKinney, 209 N.C. 668, 184 S.E. 506. There are a few cases which have been regarded as reaching a contrary conclusion but which, on examination are clearly distinguishable. Thus in State ex rel. Fehnenbach v. Logan, 195 Mo. App. 171, 190 S.W. 75, it appeared that a Recorder had incorrectly certified on the margin of his records that a parcel of real estate had been released from a deed of trust. Plaintiffs thereafter purchased the land relying upon the Recorder’s certification. The deed of trust was subsequently declared to be a valid lien against the property. Plaintiffs paid off the lien and brought an action against the Recorder and his surety on the bond. The court held that the statute of limitations did not begin to run as to plaintiffs until they acquired the land. It is obvious that plaintiffs in the Logan case had no cause of action prior to the time when they purchased the land. The cause did not accrue until they acquired their interest in reliance upon the certification. The court
As applied to plaintiffs whose rights are immediately affected by a breach of duty on the part of a public officer, the Supreme Judicial Court of Massachusetts in McKay v. Coolidge, supra, stated the law in the following language: “The cause of action set forth in the plaintiff’s bill is a tort. The misconduct of a clerk of a court in failing to perform his duties in the respects averred constitutes misfeasance or nonfeasance in office. United States v. Daniel, 6 How. 11, 12 L.Ed. 323; Dunlop v. Keith, 1 Leigh (Va.) 430, 19 Am.Dec. 755. The alleged negligent conduct occurred in 1898 and 1899. That conduct as alleged was definite in its effect on the plaintiff in that it was a failure to enter judgment in his favor when it ought to have been entered, and an omission to make a correct court record, and an oversight in not advising the presiding judge of the facts touching a particular case. These wrongful acts were patent at the time they were done. They were not committed in secret, nor were they concealed. They then constituted an infraction of the plaintiff’s rights. He was entitled at that time to have his judgment properly entered and not to have his action dismissed for want of prosecution, which was in substance an
Plaintiff Sonro contends that the duty of the Register in the present case was a continuing one and that if the court had been made aware prior to distribution that the Register had failed in his duty, the court would undoubtedly have permitted plaintiff to file proof of its claim at any time before distribution, thereby establishing the date of distribution as the time at which plaintiff’s cause of action accrued. This argument is fully answered in the quotation from the opinion of the Massachusetts court in McKay v. Coolidge, supra.
While there is a natural reluctance on the part of the court to excuse misconduct of one of its own officers merely because of the passage of time, nevertheless, statutes of limitations are designed to require the assertion, by legal action, of claims within the period fixed
The motion to dismiss as to Benjamin E. Hicks and Massachusetts Bonding and Insurance Company is granted.
Though William Prickett, Jr., the Receiver of Northwest, is joined as a party defendant in this action, the specific prayers of the complaint seek no relief as to him. There is no pending motion with respect to this defendant. Therefore, jurisdiction will be retained as to plaintiff’s cause of action, if any, against Prickett.
Order on notice.