68 Conn. 1 | Conn. | 1896
This is an action brought against a constable and the two sureties upon his official bond, to recover damages for the act of such constable in attaching the property of the plaintiff, in a suit against the plaintiff’s wife, to which suit the plaintiff himself was not a party. The Court of Common Pleas in Fairfield county rendered judgment in the present suit in favor of the plaintiff, against all of the defendants, for substantial damages. The appeal presents-three reasons material for us to examine:—
First. It is claimed that the court erred in overruling the demurrer to the complaint, of the two defendants who were sureties, Herman Quittner and William Ireland. Second. In refusing to admit in evidence a certain written inventory. Third. In overruling the claims of the defendants, to the effect that it appeared by the finding that if the plaintiff had
We will consider these claims separately and in the order above stated. In reference to the first: It appears that the complaint is in proper and unexceptionable form for such an action, assuming any action lies in such a case against an officer and his sureties upon the official bond. It claimed the only proper relief in such an action, namely, damages. The demurrer is as follows: “ The defendants, Herman Quittner and William Ireland, demur to the prayer or claim for relief, because on the facts stated, the plaintiff is not entitled to the relief therein sought against them.” In Walko v. Walko, 64 Conn., 74, 77, this court passed upon a similar demurrer and there said: “ It is in no sense what it purports to be, a demurrer to relief. 58 Conn., 567, § 11. It is in direct contravention to General Statutes, § 878, which provides that ‘all demurrers shall distinctly specify the reasons why the pleading demurred to is insufficient.’ ” The rule for proceedings under the Practice Act, referred to in the above quotation, is too plain to admit of justification of an attempt to nullify the statute quoted, in this way: “ Where any relief demanded by the plaintiff cannot properly be demanded upon the allegations of the complaint, although these may be sufficient to call for some other relief, the defendant may demur to the relief so improperly demanded.” This demurrer, so called, was therefore properly overruled;. and the only claim sought to be made by the defendants under it, namely, that no form of liability was imposed upon them and no action whatever could be maintained against them by reason of the act alleged, was not before the court below. If, therefore, upon this question—which has in fact been fully argued before us by counsel representing both parties, and which we have fully considered—we were of opinion that the views of the defendants were correct, we ought not, for the reason above given, in justice either to the trial court or to the
The bond in suit, in the present case, is in the form prescribed by General Statutes, § 94. The condition is that the constable “ will faithfully discharge the duties of his office and answer all damages which any person may sustain by his neglect or unfaithfulness in his discharge thereof.” The question, as before stated, is whether the taking by the constable, upon a writ of attachment on mesne process, against one person, of the goods of another, is a breach of this condition of the official bond, for which the sureties upon such bond are liable.
This question, either in the precise form above stated, or forms which are clearly analogous, has received examination showing much divergence of views and difference in conclusions in other jurisdictions. Perhaps at present, the leading as well as one of the most recent cases upon the subject, is that of Lammon v. Feusier, 111 U. S., 17. The opinion, in which the entire court concurs, is by Me. Justice Geay. The citation and review of the earlier cases throughout the United States, is most exhaustive. The precise point decided was : “ The taking, by a marshal of the United States, upon a writ of attachment on mesne process against one person, of the goods of another, is a breach of the condition of his official bond, for which his sureties are liable.” The bond in the case cited, as in the one before us, was conditioned for the faithful performance of the officer’s duties. The line of reasoning adopted by the court, to summarize it, is this: The official duty of the officer serving the writ is to take the property of the defendant, and of no one else. The taking of the property of another is a breach of such duty; but the act, being done in executing the process, is an attempt to perform
The court then proceeds to review the decisions upon the “ analogous question,” concerning the liabilities of sureties upon the official bond of a sheriff, a coroner, or a constable. The conclusion reached is that upon the weight of authority as well as upon principle, the sureties are liable. In this conclusion, and mainly for the reasons stated, we concur.
It was urged before us by the defendants in the present case, that at the time when many of the decisions supporting the view above indicated- were rendered, there were few statutes authorizing the replevying of goods from an officer, and that the goods attached, whether such attachment was rightful or wrongful, were supposed to be in the custody of the court. It was claimed that the lack of this remedy influenced many decisions, including Lammon v. Feusier, supra,
Coming to the defendants’ second assignment of error— the refusal of the court to admit certain evidence upon the trial to the’court on the merits, under an answer of denial— a statement of facts is essential, which facts will, some of them, be important also to consider when we reach the final assignment.
At the time of the attachment Louisa Fawcett, the plaintiff’s wife, was engaged in conducting a millinery store with a miscellaneous stock of millinery goods therein. The defendant officer, with a writ of attachment against said Louisa, entered said store and attached the goods therein, including the goods belonging to the plaintiff, and carried the same awajr. When the officer entered the store said Louisa was there, the plaintiff was not. The officer stated to Louisa his mission, but did not make demand for goods to satisfy the writ. She touched a large show case filled with goods, saying, “Do not touch anything here; these do not belong to me.” During the attachment the plaintiff came in and informed the officer that some of the goods in the store belonged to him, and asked that he might be allowed to see what he (the defendant) was taking, and make a list of the same. The request was denied. The goods of the plaintiff and of his wife were not kept separately, nor was there anything on or about the goods in said store to indicate to a stranger that they belonged to different owners. .But there was no confusion of the plaintiff’s goods with .those of said Louisa, nor any fraudulent intent on the part of the plaintiff or said Louisa in mingling their goods together in the same store. Said Louisa paid the rent for said store, and employed and paid all the employees in the
“ Said defendant, while testifying in his own behalf, identified a written memorandum, which he testified was an inventory of all the goods attached, made by him at the time of said attachment, partly from his own inspection of the goods and the tags or tickets thereon, and partly from information given him at the time by John Lockwood aud Wilbur F. Young, who had been employed by him to assist in attaching and removing said goods. He testified that he could not specify any particular article in said inventory as one upon which he had seen a price mark, and could not say as to any particular item in said inventoiy, whether lie had written it from his own examination of the article, or from information furnished him by one of his said assistants. He also testified that nearly all of the goods attached were marked, and that he used said inventory in making out his return on the writ. The defendants’ counsel, for the purpose of further showing the manner in which said inventory was made, then read a portion of the deposition of said Wilbur F. Young, as follows:
“ Q. Did you and Mr. Ireland take an inventory of the stock attached ? A. We did.
“ Q. Did you attach to this inventory any value of the stock? A. Yes.
*12 “Q. Upon what was this value based? A. Upon the amount it would bring at forced sale.
“ Q. Were, or were there not, any tags with prices marked upon them affixed to the goods attached ? A. There were.
“ Q. Were or were not these prices so affixed taken by you and Mr. Ireland in making up the value in the inventory? A. They were.
“ The defendant then offered said inventory in evidence for the following purposes: (1) To contradict the plaintiff and his wife as to the value of the goods, she having testified that some of the goods were marked. (2) As a part of the res gestae. (8) As descriptive of the property attached. (4) As tending to prove the value of said property. - To the admission in evidence of said inventory the plaintiff objected and the court excluded the same, but ruled that the witness (said defendant) might use said inventory to refresh his recollection as to the number and description of the articles attached, and the prices marked thereon. The defendants duly excepted to the court’s ruling in refusing to admit said inventory in evidence. The witness did use said inventory to refresh his recollection, and having so refreshed his recollection, testified as to the prices marked on 17 hats, 7 rolls of ribbon and 4 pieces of velvet trimmings. On cross-examination he testified that he had selected and testified concerning said 17 hats because, to the best of his belief, he had personally seen the price marks on one half of the whole number of hats named in said inventory, and, therefore, had selected from said inventory alternate hats to the number of 17 ; and again stated that he could not select from said inventory any specific article as one he had personally seen a price mark on at the time of the attachment. Thereupon the defendant again offered said inventory in evidence, but the court refused to admit the same, to which ruling the defendant duly excepted.”
The general principles involved in the examination of the question thus presented, have been so recently and so fully stated by this court— Curtis v. Bradley, 65 Conn., 99—that it can serve no good purpose to do more than refer to them,
The inventory was, as we have seen, claimed to be admissible for four purposes, or on four grounds. One of these was “ as a part of the res gestee.” Manifestly this is independent of the question of the defendant’s knowledge of the
But finally, it is asserted that the finding shows, as a mat
There is no error in the judgment complained of.
In this opinion the other judges concurred.