Gray v. Noonan

SLOAN, J. The main question presented by the record in this case is, Does an unsatisfied judgment rendered against a sheriff individually for the conversion of personal property seized by him under a writ of attachment, and which is the property of a stranger to the writ, constitute a bar to a subsequent suit upon the same cause of action, brought against the sheriff and his sureties upon his official bond ? This question arises under the following facts: On the 11th of Febru [39] ary, 1891, appellee, Daniel Noonan, obtained judgment in the court below against appellant William T. Gray in tbe sum of $1,217.77, upon a complaint which charged that Gray had wrongfully taken personal property belonging to Noonan and had converted the same to his own use. In his answer in this suit Gray sought to justify the taking of the property by him as sheriff under and by virtue of a writ of execution against the property of J. A. Noonan, the wife of appellee. A writ •of execution was issued upon this judgment against the property of Gray, which was returned nulla bona. Thereupon Noonan brought this suit against Gray and the other appellants, sureties upon his official bond given by him as sheriff, to recover damages for the taking and conversion of the same property described in the complaint in the original suit against Gray. A verdict was had for Noonan, and judgment entered accordingly. The taking by a sheriff upon a writ of attachment against one person of the goods of another person is now held in the majority of state courts to be a breach of the condition of the sheriff’s bond, for which his sureties are liable. This doctrine is approved by the supreme court of the United States in the case of Lammon v. Feusier, 111 U. S. 17, 4 Sup. Ct. 286, wherein Justice Gray, in the opinion, collates the cases upon this subject, and from the weight of authority, as well as upon principle, finds this rule of law fully sustained. The cause of action in such a suit is the breach of the bond, and not primarily the trespass committed by the sheriff. The written obligation to be answerable for any violation of the official duty of the sheriff alone constitutes the liability of the sureties. On the other hand, the primary liability of the sheriff is not dependent upon his official bond, but rests upon his common-law liability for the trespass. Although the same acts constituting the trespass on the part of the sheriff make the breach of obligation expressed in the bond, they give rise to several and distinct rights of action. The right of action against the sheriff for trespass and the right of action against the sureties upon his official bond for breach of his official duty are cumulative remedies merely, and are not alternative remedies requiring an election. The judgment against the sheriff individually does not extinguish the obligation of the sureties. There is no merger of the latter in [40] the judgment. The ease is analogous to that where one holds cumulative securities. The holder of such is entitled to so many judgments as he has distinct securities, although he may not claim more than one satisfaction.' Thus it has been held that in the case of a note secured hy mortgage upon real estate a judgment upon the note did not extinguish the mortgage, and until the debt was satisfied the remedy of foreclosure of the mortgage still remained. Butler v. Miller, 1 Denio, 407. Accordingly, the supreme court of South Carolina, in the case of Carmack v. Commonwealth, 5 Binn. 184, held that “¿ judgment in trover against the sheriff is neither an extinguishment of his official security nor a bar to a suit against his sureties. It is but one of several remedies which the injured party may use successively until he obtains satisfaction.” In the case of Inhabitants of Greenfield v. Wilson, 13 Gray, 384, Carmack v. Commonwealth, supra, is cited with approval, and the reason of the law is further extended in the following language: ‘ ‘ Officers are hy the common law answerable for legal injuries done by their official acts or acts under color of office. But they may not have pecuniary ability to pay the damages that may be recovered against them, or they may dishonestly avoid payment. Hence the statute requisition that they shall give bonds with sureties for the faithful performance of their official duties; thus giving to a party injured hy the officer’s acts a cumulative remedy,—that is, a remedy in addition -to an action against thé officer founded directly on his misdoings. Undoubtedly, such party can have only one satisfaction; hut a judgment in an action brought against the officer for his misdoings is not per se a satisfaction for the party’s injury. It may be wholly worthless, and while it is unsatisfied it can be no bar to an action on the officer’s official bond.” To the same effect are People v. Schuyler, 4 N. Y. 173; Charles v. Haskins, 11 Iowa, 329, 77 Am. Dec. 148; Lewis v. Mills, 47 Neb. 910, 66 N. W. 817; Pico v. Webster, 14 Cal. 203, 73 Am. Dec. 647. We find no error in the record, and the judgment is therefore affirmed. Doan, J., and Davis, J., concur. Street, C. J., having been of counsel in the district court, took no part in the consideration of the case in the supreme court.