17 Mont. 448 | Mont. | 1896
The question raised upon this appeal is, what is the effect, upon the sureties on the official bond, of a judg
One line of authorities holds that the judgment against the principal is conclusive against the sureties. The courts holding this view are very few, although among them is one wholly respectable tribunal. The second view held is that the judgment against the principal is prima facie evidence against the sureties. The third rule laid down by the authorities is that the judgment against the principal is no evidence at all against the sureties, and that, to hold the sureties for the misfeasance of the principal, the facts of the misfeasance must be proved in an action in which the sureties are defendants. These two latter rules are sustained by probably a nearly equal number of respectable courts.
The question being a new one with us, and the authorities being divided, we shall proceed to decide the matter upon what appears to us to be the most reasonable principle.
The case of Pico v. Webster, 14 Cal. 203, is a leading case. We find it cited by all text writers, and in many of the opinions. Its reasoning appeals to us so strongly that we quote from it somewhat at length: “This suit was brought on the official, bond of the defendant, Webster, who was sheriff of San Joaquin county, against Webster and his sureties. The
In this state, a principal and sureties may be sued together. (Wibaux v. Live-Stock Co., 9 Mont. 154; Hoskins v. White, 13 Mont. 72; Woodman v. Calkins, 13 Mont. 365; Nelson v. Donovan, 16 Mont. 85.)
There is no reason, in the case at bar, why the principal and sureties were not originally sued in one action. It therefore seems to us that it is not within the spirit of the practice in this state to allow one to sue the principal first, and then make that judgment either conclusive or prima facie evidence against the sureties, who were not made parties to that action. It seems that to allow such practice would be an invasion of the principle that every man is entitled to his day in court. Another principle is that, when a defendant is sought to be charged with a liability, there is not a presumption of his liability to commence with. If we hold that a judgment against the principal is conclusive or prima facie evidence against the sureties, the sureties are obliged, to start into the action with a presumption of liability against them. The ordinary rule of law is that the plaintiff must prove his case by evidence; but, if a judgment against the principal is evidence against the sureties, the affirmative of the case is thrown upon the defendants. They must take the burden of proof. Instead of the plaintiff proving his case, the defendants are placed in a position of being obliged to prove their nonliability. In analogy to a criminal case, the defendants would be obliged to prove their
We believe by far the best of the three rules above noticed is that which denies to the judgment against the principal any effect as against the sureties. We think the sureties should not be compelled to face a judgment, with all its presumptions, and one which was rendered in an action to which the sureties were not parties, and of which they had no notice whatever, and to defend which they had no opportunity.
This action being upon the judgment, as plaintiff’s counsel has insisted in his brief and argument, we are of opinion that the district court was correct in holding that the judgment could not bind these sureties. The court was therefore correct in sustaining the demurrers to the complaint.
The judgment is affirmed.
Affirmed.