74 Mich. 687 | Mich. | 1889
This suit was brought on the sheriff’s bond of John McOanna, sheriff of Schoolcraft county, for misconduct in office to the injury of the plaintiffs by seizing and converting their property under an attachment against one William E. Smith. The declaration showed that suit had been brought and damages recovered against McOanna as such sheriff, for the wrong, in the circuit court of the Dnited States for the Western district of Michigan, upon which an execution issued was returned unsatisfied for want of property to be found.
Upon the trial below reliance was had upon this judgment, and the court found for plaintiffs for its amount against Mersereau, a surety on the sheriff’s bond. The questions raised here on error relate to the nature of the grievance, as claimed to be unofficial and outside of the surety’s liability; to the judgment in the Dnited States court, as not admissible against the surety; and to the formal proof of the judgment. This proof consisted of a properly-certified copy, under the seal of the court, of the pleadings, which were special, and on personal appearance, and of the record of verdict and judgment. We can see no objection to this proof. It is a good common-law certificate, and covers everything necessary to show a valid judgment, by showing jurisdiction of person and
It is claimed that the sheriff's act in levying on the plaintiffs’ property upon a writ against another party was not an official act, but was a mere private trespass, for which his sureties are not responsible. The authority in Ex parte Reed, 4 Hill, 572, cited to the contrary, is a very scantily-reasoned holding, on an application for leave to sue a sheriff’s bond, and was overruled ima well-reasoned decision of the court of appeals in People v. Schuyler, 4 N. Y. 173.
The only remaining question is as to the effect of the judgment. The judgment in the action in the United States court is so clearly one for a wrongful levy as to need no discussion on that point. But it is claimed it has no effect as evidence against sureties, and it is further claimed that it must be conclusive evidence, or no evidence at all.
There is certainly some variance in the authorities on the subject, but the prevailing reasons, except where there are statutory difficulties, seem to favor the rule that such a judgment is prima facie evidence against the sureties. That doctrine was held, after full discussion, in Lowell v. Parker, 10 Metc. 309, and very convincing reasons were given in favor of it. That such a judgment should not be conclusive against the surety, unless he has been notified to defend, or made a party, is well enough based on the possibility of fraud or collusion. But beyond this there is no very good reason for any exception. It is for the advantage of the surety to have the sheriff pursued to judgment, and the exhaustion of execution before he himself is sued, not only because if the sheriff is good the surety will not be harassed by litigation at all, but also because in such cases there is frequently, and always may be, an indemnitor, who becomes jointly liable, and to whom recourse may be had which will relieve or exonerate the surety. And there is no more reason for excluding a judgment, which is usually only obtained after a fair litigation against the sheriff, than the sheriff’s certificates and other admissions, which are less solemn than
There are many states which require an exhaustion of legal remedies before suing sureties, and in such cases the previous judgment must necessarily perform an important part.
This principle was practically recognized by this Court in Lee v. Wisner, 38 Mich. 82, and it is apparently taken for granted by the case in 111 U. S. 17, which cited on the main question the state decisions which so hold.
The judgment should be affirmed.
Counsel for defendant also cited Taylor v. Parker, 43 Wis. 78; State v. Conover, 28 N. J. Law, 224.
Counsel for defendant cited 2 Am. Lead. Cas. (4th ed.) 439-451, and cases there cited; Pico v. Webster, 14 Cal. 202.
See Doran v. Butler, 74 Mich. 643, for a seemingly contrary holding.