Mason v. Crabtree

STONE, J. The complaint in tbis cause, as originally filed, contained two counts. It was amended by adding a third. Each of the counts relies on an alleged breach of Crabtree’s official bond as a notary public, “ having the jurisdiction of justices-of the peace.” The condition of such bond is, “ faithfully to discharge the duties of such office so long as [he] may continue in such office, or discharge any of the duties thereof.” — Code of 1876, § 1328. Such is the averment of each of the counts in the present complaint. The suit is against Crabtree, as notary, and his sureties on his official bond. It is set forth in the first and third counts that Crabtree, as notary public and ex offi-cio justice, had rendered a judgment against Mason, the plaintiff, in favor of one McDonald, and had also issued process of garnishment, making the Louisville and Nashville Bailroad Company a garnishee in the cause. It is then averred that the railroad company had answered, admitting an indebtedness-greater in amount than McDonald’s judgment against the plaintiff, Mason. Each of these counts avers that no judgment had been rendered on the garnishee’s answer, condemning said admitted indebtedness, or any part of it, to the payment of McDonald’s j udgment. It is then averred that Crabtree had falsely and fraudulently represented to the railroad company, garnishee, that he had condemned said admitted indebtedness of the latter to McDonald’s said judgment, and that on such representation he demanded and collected said sum from the railroad company, and had failed and refused to pay the same to the plaintiff. This is the alleged breach of the bond the plaintiff relies on for a recovery. It is very clear that until there was a judgment rendered, condemning the indebtedness in the hands of the garnishee to-the payment of the demand under which it was attached, the railroad company was not authorized to pay, nor was any person, official or otherwise, authorized to demand payment, by virtue of the garnishment. A payment so made would not discharge the indebtedness of the railroad company to Mason, but would leave it as if no garnishment had been sued out or served. It is equally clear that a collection made as is alleged in this case, was not an official duty, and, in the absence of statute, would impose no liability on the notary’s sureties. [481] But the official bond of officers in this State is made “obligatory on the principal and sureties thereon . . for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.”—Code of 1876, § 179. In McElhaney v. Gilleland, 30 Ala. 183, this statute was construed. It was there said the object of the statute was “to extend the remedy beyond those cases in which a wrong is done in discharge of the legitimate duties of the office, to those in which a wrong is done under color of office.” Quoting Bouvier, it was said, “ Color of office is [where] a wrong is committed by an officer under the pretended authority of his office.” A justice of the peace, or notary public having the jurisdiction of a justice, is a bonded officer, and, as such, has authority to collect money on claims placed in his hands for collection.—Code of 1876, §§ 756, 759, 1328 ; subd. 4, 1329. Under the averments of the complaint, if the notary had rendered judgment against the railroad company, condemning its indebtedness to the payment of the judgment against Mason, he would have had, authority to receive the money, and to give the railroad company a lawful discharge therefrom. He pretended he had rendered such judgment, and thereby pretended he had authority to receive the money. This, if true, was a wrongful act committed under color of his office, and rendered him and his sureties liable for the restitution of the money. This is unlike the case of McKee v. Griffin, 66 Ala. 211. In that case there was no law authorizing the officer to receive the money in his official capacity, and official sureties are only bound for acts that are official, or done under-color of office. The first and third counts are sufficient; but there can be no recovery for any thing beyond the sum of money received, and interest upon it. Reversed and remanded.