Tute v. James

The opinion of the court was delivered by Royce, J. When this case was before the Supreme .Court at the August Term, 1873 (46 Vt. 60), it was determined that an action of scire facias could not be maintained against the sureties of a deceased sheriff until the extent of the liability of the sher [128] iff’s estate had become fixed by an allowance against it for the 'damage sustained by reason of the official misconduct, default,, or neglect complained of. The referee has found that the claim sought to be recovered in this action has been allowed by the commissioners on the deceased sheriff’s estate, and that the report of the commissioners has been accepted by the Probate Court; that the estate was finally closed on the 7th of August, 1875, and that there were no assets to be divided amongst the creditors. The acceptance of the report of the commissioners by the Probate Court is, in legal effect, a judgment of that court. Richardson v. Estate of Merrill, 32 Vt. 27; and it is conclusive of the liability of the sureties of the sheriff upon his official bond, if they are bound by it. They claim, first, that the manner in which the allowance of the claim was procured, makes the whole proceeding void for irregularity. The proceedings upon their face appear to be regular, and the rule, as enunciated in Tappan v. Hutting, Brayt. 137, and recognized in all subsequent cases down to Porter v. Gile, 47 Vt. 620, is, that a judgment cannot be impeached collaterally. In Kimball v. Newport, 47 Vt. 38, it is said that judgments which appear to have been regularly obtained, are conclusive upon parties and privies, and if one would avoid such a judgment, it must be done by some proceeding instituted for that purpose. This rule is applicable here, and is conclusive against the right of the-defendants to avoid the judgment of the Probate Court, and its legal effect upon the facts proved. The defendants claim, secondly, that inasmuch as they were not parties to the proceedings in the Probate Court, they are not concluded by its judgment. The same question was before the court in Chamberlain v. Godfrey, 36 Vt. 380, and Aldis, J., upon a thoi-ough review of the authorities bearing upon the question, states as a conclusion, that a judgment against a sheriff binds his sureties though they have no notice, except where the judgment is by default. It is not claimed that this case comes within the exception, and that decision is decisive against the claim of the defendants. See also Bradley v. Chamberlain, 35 Vt. 377, in which it was held that a previous judgment against the sheriff was conclusive of the plaintiff’s right to a judgment against the sheriff and his bail, as against all defences which the sheriff might [129] have urged in opposition to the suit against him aloneso here, the fact as to whether the execution was seasonably delivered, to charge the property or its avails in the hands of the sheriff, and whether the execution was - returned, and where, and whether the claim was barred by the Statute of Limitations, were all matters of defence against the allowance of the claim against the sheriff’s estate; and the administrator could have insisted upon such matters of defence to the same extent that the sheriff could have done while living. All matters of defence, then, that existed prior to the judgment, being concluded by it, the rights of the plaintiff are not dependent upon, nor to be controlled by, the-fact whether such defences might have been successfully made against the allowance of the claim, or not. The only remaining question presented by the report that it is important to consider, relates to the competency of Allen and Cutting as witnesses. The Constitution of the State, Art. 22, requires that sheriffs shall, before entering upon the duties of their office, give sufficient security to the treasurer of their respective counties, in such manner and in such sum as shall be directed by the Legislature. The Legislature has required, by s. 1, c. 12 of the Gen. Sts., that such security shall be given by a recognizance to be entered into by the sheriff, with twp or more securities, conditioned for the faithful discharge of the duties of his office; and has provided by ss. 69 and 70 of c. 30, that where judgment shall have been rendered against any sheriff for any official misconduct, neglect, or default, the creditor may, in his own name and right, sue out a writ of scire facias ; and it is under those sections that this suit was brought. The question of official misconduct, neglect, or default of the sheriff, was in issue in the proceeding before the commissioners and Probate Court, and was settled by the judgment. The witnesses Allen and Cutting were not, in a legal sense, parties to this suit or the cause of action in issue, and on trial, so as to render them incompetent. This view, we think, is in harmony with the construction which has always been given by the court to the statute. Judgment affirmed.