Chaffee v. Hooper

The opinion of the court was delivered by Yeazey, J. This is an action of debt against the defendants as principal and sureties upon a deputy sheriff’s bond. The deputy, Dwinell, had taken a receiptor for goods attached in a suit in favor of one Fletcher, but without his consent. The ad damnum in the writ was $400. The judgment rendered was over $400. The plaintiff, who was the sheriff, paid this judgment, and brought this suit upon the bond of his deputy. I. The defendants in this suit now claim that the plaintiff cannot recover, for the reason that the judgment in the Fletcher suit-was void, being for more than the ad damnum in the writ. It was error to render a judgment for more than the ad damnum ; but the judgment was not void. It was an error which the judgment debtor might waive, and which the defendants in this collateral suit cannot make available. It is well settled that where courts have jurisdiction of a cause, their judgments, however erroneous, are valid until reversed or set aside. Hammond & Draper v. Wilder & Locke, 25 Vt. 342; Bruce v. Cloutman, 45 N. H. 37. In Freeman on Judgments, section 116, the author puts the proposition in the negative form, that the judgment of a court of general jurisdiction is not void, except where the court has no jurisdiction. See also Huff v. Hutchinson, 14 How. U. S. 586. II. It is claimed that this suit is prematurely brought, because Dwinell is dead, and no claim has been allowed against his es_ tate, and no judgment rendered against the plaintiff. There are no statutory provisions regulating proceedings on a deputy’s bond to the sheriff, as there are in respect to the sheriff’s [516] official bond. The sheriff may take a bond or not from his deputy in his discretion. Gen. Sts. s. 6, p. 86. If he does, it is but a contract between them as individuals in the form adopted, and proceedings thereon for breach stand the same as in ordinary cases. This suit was not prematurely brought on the grounds claimed. III. Was Fletcher competent to testify to the fact that the deputy Dwinell sought his consent to take Wiggins as receiptor, and that he refused ? He is not a party “ to the contract or cause of action in issue and on trial.” The transaction to which he testified was another matter between him and Dwinell, bearing upon the cause of action on trial, but only collaterally. When the fact is lut incidental and collateral to the contract or cause of action in issue and on trial, this court has repeatedly held that the disqualifying proviso to section 24, chapter 36, General Statutes, does not apply. Cole v. Shurtleff, 41 Vt. 311 ; Morse v. Low, 44 Vt. 561. Moreover, this court decided in Lytle v. Bond's Estate, 40 Vt. 618, that the limitation or exception in the proviso in case of the death or insanity of one of the parties, applies only to parties ; it does not exclude persons interested in the event of the suit, “ unless they are parties to the contract or cause of action in issue and on trial.” The witness being competent and the testimony admissible, the County Court was warranted in finding as it did that Dwinell called upon Waterman to advise him as his, Dwinell’s, attorney, and not to advise him as the attorney of Fletcher. IY. The fact that the plaintiff when he paid the Fletcher execution took a bond back, conditioned for repayment in the event that it should turn out that there was no legal default as against the plaintiff, does not affect his right of recovery. He in fact paid the execution, and there being a question as to his being obliged to pay it, he but exercised a right by taking security. No person’s rights were concluded or affected by his act. He must either pay or be subject to a suit. It now appears he was liable, and in paying acted wisely. The pro forma judgment of the County Court is affirmed.