Crosthwait v. Pitts

DOWDELL, J. Tfie amendment of tfie complaint by striking out tfie name of Baker as a party defendant did not operate a discontinuance of tfie cause. The record shows that Baker died after the commencement of the suit, and before the amendment by striking his name as a party defendant. Tfie amendment, therefore, was in effect, nothing more than an order abating the suit as to him. Tfie only difference between tfie case at bar and that of McClendon v. American Freehold Land Mortgage Co., 119 Ala. 518, as to tfie parties, is that in tfie latter tfie suit was by the mortgagee, and here tfie suit is by [424] tlie transferee of the mortgagee. In McClendon v. Mortgage Co., supra, it was held that the justice of the peace was liable on his official bond for falsely certifying to the acknowledgment of the wife to the mortgage, when in fact the wife had not been examined by him separate and apart from the husband and no such acknowledgment as was certified to had ever been had. He had not acquired jurisdiction of the person whose acknowledgment was falsely certified, and could, therefore, claim no immunity from responsibility for his act on the ground that it was judicial. He was in that case held liable to the Mortgage Company, the mortgagee, for the loss and damage jmoximately resulting from Ills wrongful act. The wrongful act here complained of, the false certification, was in its nature continuing, with an accompanying responsibility and liability to any one who might suffer loss and damage as a proximate consequence of such misconduct and wrong. The statute [§ 3087 of the Code], provides: “Every official bond is obligatory on the principal and sureties thereon — 1, for any breach of the condition during the time the officer continues in office, or discharges any of the duties thereof. 2, for the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition Is expressed therein. 3, 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.” There can be no doubt under the allegations of the complaint but that the plaintiff was injured by the alleged wrongful act of the defendants’ principal, and that the loss .suffered by the plaintiff wras the proximate result of such wrongful act. Under subdivision 3 of the statute above set out, the plaintiff clearly lias his right of action on the official bond for the damages sustained by him as averred in his amended complaint. The court erred in sustaining the demurrer to the complaint as amended. [425] The judgment trill be reversed and a judgment will be here rendered overruling the demurrer. Reversed and rendered, and remanded.