McKissack v. McClendon

DOWDELL, J. This is an action against the sheriff on his bond as such,for the breach of said bond. There is but one question in the case, and that is, whether the obligors in said bond are liable on said bond as a statutory bond. The defense is rested upon the fact of the failure of the sheriff, McClendon, the principal obligor, to sign the bond. The facts show that the defendant, McClendon, before entering upon the discharge of his duties as sheriff, to which office he had been elected, procured and obtained •from the judge of probate a form, or blank bond, to be filled out by him as his official bond, and executed with proper sureties; that he filled out said bond, writing his own name three times, and the names of the sureties in the body of the bond, but through oversight failed to sign the bond as principal obligor, though the same was signed by' the appellees here as sureties; that the bond so filled out and signed, was by the said McClendon delivered to the probate judge for approval as the said sheriff’s official bond, and was duly approved and recorded by the probate judge of Henry county; that said McClendon entered upon the discharge of his duties as such sheriff, having otherwise qualified by taking the oath of office, under said bond, and acted as sheriff [560] and was acting as such under said bond, at the time of the breach complained of. In Sprowl v. Lawrence, 33 Ala. 674, which like the present case, was an action on the sheriff’s bond, and where the bond had not been filed and approved as required by the statute, it was said by this court, in construing section 132 of the Code of 1852, being the same as section 3089 of the present Code (also sections 120 and 126 of the former Code, which are the same as sections 3072 and 3073 of the present Code) : “An examination of the various provisions of the Code, in reference to the bonds of public officers, will satisfy any one of the studious solicitude with which the legislature has sought to afford the most ample protection to all persons interested in the performance by such officers of their official duties. The section we are considering is a part of the legislation designed to effect this general object; and it is our duty to put upon it such a construction, as will harmonize with the substance and spirit of the text to which it belongs. It is a remedial statute; and we must construe it largely and beneficially, so as to suppress the mischief and advance the remedy ; or in the language of Lord Coke, so as ‘to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro dono publico’”; citing Hey don’s case, 3 Rep. 7; Sedgwick on Statutes, 359-60. “It must be admitted that the words of this section, [§ 132, Code, 1852, § 3089, Code, 1896] are not as clear and precise as they might be; and it is a well settled rule, that when the words, are not precise and clear, such construction will be adopted as shall appear the most reasonable, and best suited to accomplish the object of the statute; and a construction which would lead to an absurdity ought to be rejected.” In that case it was argued by counsel, as here, that inasmuch as the bond cvas in the penalty, payable and conditioned, with sureties of requisite qualification and sufficiency, as prescribed by law, the defect, namely: (in that case) that it was not “approved and filed according to law,” (in the present case) that the bond was not signed by the principal obligor (the sheriff), was not one of the defects or omissions specified in the [561] statute, and. consequently did not fall within the provisions of that statute. Without reiterating what was said in Sprowl v. Lawrence, arguendo in response to the insistence of counsel, we further quote from that case on page 687, where it was said in conclusion on that proposition: “This section, therefore, in our judgment, applies to a bond which does not conform to any of the statutory requirements, either as to its penalty, payee, conditions, approval, or filing, provided the officer executing it has acted under it. Much more clearly does it ax>ply to a bond Avhich the officer executing it has acted under, and Avhich does conform to all the requirements of the law, except the last tAvo — approval and filing. To hold otherwise, would be to maintain the paradox, that the validity of the bond is enhanced by its increased imperfections — that a total is less hurtful than a i>artial departure from the statute, and that an instrument in fact gets better as it grows worse.” The approval and filing is as much a requirement of the statute, as the signing by the sheriff, the principal oblig- or, and yet neither is among the omissions specified in the section. The fact, that the sheriff acted under the bond as his official bond, is made the controlling principle under the reasoning employed in Sprowl v. Lawrence, supra. We can see no difference in principle between that case and the one at bar. In Steele v. Tutwiler, 68 Ala. 107, the court, after' citing approvingly Sprowl v. Lawrence, supra, says: “Wre construe the phrase then, ‘a bond, Avhich is not payable or conditioned as prescribed by law,’ as having reference to irregularities or imperfections in both the body and the condition of the bond; and as there can be no legal bond at all Avithout signatures, the statute has, also, necessary reference to any want of formality, or imperfection, in the execution or signing by the obligors.” The summary proceeding in that case on the bond Avas sustained. Under the principle laid dOAvn in these cases, our conclusion is, that the bond here, as to the sureties signing it, stands in the place of the official bond of the sheriff, subject on its condition being broken to all the remedies which the person aggrieved might have maintained on [562] tlie official bond of such officer, executed, approved and filed according to law. — § 3089. The case of Painter v. Mauldin, 119 Ala. 88, where the guardian’s bond was held not to be a statutory bond, but good as a common law obligation, as to the sureties, is distinguishable from the present case, in this, that a guardian’s bond does not fall within the provisions of section 3089. It is of no consequence that the sureties did not know of the failure of the sheriff to sign said bond, and that he was acting under it, without having first signed the same. They signed it for the purpose of his acting under it, and he having acted under it, they became bound by it. ■ The court erred in giving the general charge requested by the appellees, and for this error the judgment will be reversed and the cause remanded.