State ex rel. Walsh v. Farrar

77 Mo. 175 | Mo. | 1882

Hough, C. J .

Thomas J. Dailey, as administrator of the estate of James Roddy, deceased, brought an action of replevin against Patrick Roddy for certain specific personal property alleged to be the property and assets of said estate. Said Dailey gave bond in the sum of $4,775, and, as administrator as aforesaid, received the property sued for from the sheriff. Walsh, to whose use this suit is brought, was one of the sureties on said bond. Judgment was finally rendered in said replevin suit in favor of Patrick Roddy, and against the sureties in the replevin bond, for the sum of $3,000 and costs of suit. Under execution issued on said judgment Walsh was compelled to pay said sum of $3,000, and the further sum of $88.60 costs, Bailey, the administrator, and the other surety on the replevin bond being insolvent. On motion in the circuit court, judgment was rendered in favor of Walsh against said Bailey, as administrator, for the sum so paid by him with interest, and said Bailey, as administrator, was ordered by the circuit court to pay said sum to Walsh, which, after demand, he refused to do. Thereupon this suit was instituted against said Bailey and the sureties on his bond as administrator, to recover said sum so paid by Walsh. And a judgment was rendered for the plaintiff in the circuit court, which was affirmed by the court of appeals.

The only question presented for determination is, whether, on the facts stated, the plaintiff has a good cause of action against the sureties in the administrator’s bond.

It is settled in this State that an administrator, as such, may maintain replevin, and when judgment is rendered against him for the value of property received by him in such suit, the judgment should be against him de bonis testatoris; (Ranney v. Thomas, 45. Mo. 112;) and the sureties of an administrator would undoubtedly be liable, if he should negligently omit to bring such action for property belonging to the estate, whereby it should be lost. Bailey having by means of the replevin suit become possessed of property as belonging to the estate, which the circuit court decided did not belong to it, it was his duty as administrator to pay the value thereof to its owner. And the plaintiff having paid it for him under the judgment of the circuit court, became subrogated ipso facto, to all the rights of Patrick Roddy, to whom restitution should in the first instance have been made. Now the claim of Patrick Roddy to re-imbursement did not constitute a demand which could be allowed against the estate of James Roddy, but it was a claim against Dailey in his ofiicial capacity, arising out of the improvident exercise of his official functions, which it was his ofiicial duty as administrator to pay, and for a breach of which duty, the sureties on his bond are liable.

Besides, the circuit eoui’t had jurisdiction in the replevin suit to direct Dailey, the administrator, to pay Walsh out of the assets in his hands as administrator, inasmuch as he had taken into his possession, as administrator, the property of Patrick Roddy; and by the terms of the bond of Dailey, the parties are responsible for a failure on his part to perform all things touching- his administration required by “the order or decree of any court having jurisdiction.” R. S., § 19. Vide De Valengin’s Admr. v. Duffy, 14 Peters, loc. cit. 290; Simpson v. Snyder,, 54 Iowa 557.

The judgment of the court of appeals will be affirmed..

The other judges concur.