30 S.C. 342 | S.C. | 1889
The opinion of the court was delivered by
The plaintiff, appellant, Elizabeth Strain, some time .previous to November, 1880, obtained a decree against John T. McGowan for $1,000, which, on November 5, 1880, was handed to M. E. Babb, the then clerk of the Court of Common Pleas for Laurens County, to be by him disposed of according to law. This decree seems to have been marked “filed” by the said Babb, but. nothing more was done. It was not enrolled nor entered in the book of abstract of judgments, nor indexed, and it was found by the successor of Babb in 1885 in an old desk in the office, who then enrolled it, &c. In the meantime Babb died, and the defendant, Martha M. Babb, his widow, administered upon his estate. In the meantime, also, several judgments were obtained against McGowan, and one or two mortgages were executed by him, covering his real estate,
The action below was brought against Mrs. Babb as administratrix, and the surviving sureties on the official bond of M. E. Babb, claiming to hold them responsible for the alleged neglect of duty of the said M. E. Babb, as clerk, in not properly entering, &c., the decree aforesaid, the plaintiffs demanding in their complaint judgment for the breach of the bond and for the sum of one thousand dollars, with interest thereon from November 5, 1880, and interest at 7 per cent, and costs. The defendants interposed and relied mainly upon the statute of limitations, alleging in their answers that more than six years had elapsed since the cause of action accrued, to wit, since November 5, 1880, the day that the decree was delivered to Babb, the clerk, and marked by him “filed.” His honor, the Circuit Judge, charged the jury as to the neglect of duty on the part of the clerk, and also as .to the damages incurred. And he ruled as matter of law, that the cause of action was not the official bond of the clerk, but it was the neglect of duty on his part, and therefore that the limitation within which such an action should be brought was six years, instead of that applicable to certain bonds to be mentioned hereafter. The cause of action accrued on November 5, 1880, and the action was brought in July, 1887 — six years and some eight months after the accrual of the right. Such being the admitted facts as to these dates, his honor ruled that the action was completely barred as to the defendant’s sureties on the official bond ; but as to the administratrix, Babb having died, this event suspended the statute for nine months, and consequently it did not protect her as the administratrix.
The jury found for the plaintiffs $1,549, the amount of the decree with interest from November 5, 1880, against the defendant, Mrs. Babb, administratrix. The “Brief” does not state whether the verdict mentioned the sureties or not. The notice of appeal, however, of plaintiffs’ attorneys refers to the judgment entered up in favor of the sureties, and we suppose, therefore, the jury found for these defendants.
After the finding of the jury, upon a motion being made for a
From this order, and from the judgment entered in favor of the sureties, the plaintiffs have appealed, on the ground of error alleged in granting the new trial for the reason stated, and in holding that the causé of action was the neglect of duty, and not the breach of the official bond, and therefore the action was barred both against the sureties and the administratrix— six years having clearly elapsed since November 5, 1880, the day on which the neglect of duty occurred.' The defendant administratrix gave notice that if the order of new trial could not be sustained on the ground upon which it. was granted by the judge, she would seek to sustain it on other grounds, to be noticed hereafter if necessary.
Now, we think the fundamental error in the case was the ruling of his honor that the official bond of the clerk was not the cause of the action, but that the neglect of duty, independent of the breach of the bond, was the cause. If his honor had been correct in this ruling, then his subsequent holding as to the statute, we think, would have been correct as to the sureties, and also his ruling in the first instance as to the suspension of the statute for nine months after administration granted, on account of the death of the clerk. We do not think, however, that section 123 of the Code has any application to the facts of this case. That section, in our opinion, applies only to those cases where no administration is taken out until after the expiration of the statutory period, the statute having commenced in the life-time of the decedent. But if his honor was in error in holding that the breach of the bond was not the cause of action, and that the neglect of duty was alone the cause, then the question would be as to the character of the bond and the limitation prescribed by the statute as to such bonds.
If the action was brought simply for the neglect of duty on the
Having reached the conclusion that the action below was upon the official bond of the clerk, the next question is, what is the statutory limitation in such case?. The Code answers. Section 111 provides that actions upon bonds other than for the payment of money may be brought within twenty years, or else they are barred, and this applies to all of the obligors, principal as well as sureties. Was the bond below a bond other than for the payment of money ? True, it was a bond the breach of which sounded in money — damages—and the penalty was for a specific amount, but yet it was not for the payment of money in the sense of the statute. It was in the nature of a covenant — a contract under seal, by which the obligors thereto bound themselves under the
In the case of State v. Lake, ante 43, recently decided, the bond sued on was executed before the present statute of limitations, and when bonds of this kind were held to be covenants, and subject to limitations applicable to covenants. Hence this court held that the action there was barred both as to principal and sureties, the statutory period having expired before action brought. Here, however, the bond was given after the statute was enacted, fixing the period at 20 years as to bonds other than for the payment of money. Hence that period must be applied.
We think it wras error for his honor to charge the jury that if junior judgments and liens swept away all of the property of McGowan, that in such case the p!aintiff was entitled to a verdict for the full amount of her claim and interest. This was error, because it closed the door to any inquiry on the part of the jury as to the amount and value of the property of McGowan thus sw’ept away; non constat, but that McGowan’s property might have been wholly insufficient to pay the full amount of plaintiff’s decree, if it had not been swept away by said junior liens.
We will remark here, though this question has not been raised in the case, that the proper practice in cases like this, is for judgment to go for the penalty, which stands for the benefit of all injured parties who, by proper proceeding, may have their damages assessed, with leave to issue execution. State v. Moses, 18 S. C., 367.
The result of our conclusion is, that there should be a new trial out and out, under the principles herein announced above, with leave on the part of the defendants to haye the question of damages reopened and reconsidered. And to this end,
It is the judgment of this court, that the order granting a new trial by the Circuit Court be affirmed, and that the judgment in favor of the sureties be reversed.