Greenberg v. People ex rel. Balaban

Mr, Justice Baker delivered the opinion of the court. The objection that the trial court erred in admitting the bond in evidence because the declaration averred that the. recital in the bond was that Greenberg “had been duly elected as a constable of the county of Cook,” while the recital in the bond-is that he “had been duly elected a constable in and for the town of Horth Chicago in the county of Cook,” is without merit. A constable, though elected by the voters of a town, is a constable of the county in which said town is. His certificate of election is issued by the county clerk; in case of a vacancy in the office, if the unexpired term is less than a year, the county board fills the vacancy; the writs issued by a justice of the peace run “to any constable of said county.” There is no substantial variance between the averment of the declaration and the recital of the bond. The transcript of the judgment admitted in evidence over the objection of the defendants, was under the hand, but not under the seal of the justice. The justice of the peace was called as a witness and testified that the transcript offered was a transcript of his docket and signed by him, and we think it was properly admitted in evidence. ¡Nor do we think that the court erred in admitting in evidence the paper purporting to be a copy of the execution under which Green-berg was acting. It was the copy which Greenberg gave to the judgment debtor and to which he attached his receipt and release of levy. The transcript of the judgment states that an execution was issued upon the judgment to Oonstable Greenberg. There is no evidence that the execution was ever returned and the defendants were notified to produce it upon the trial. It is argued in behalf of appellee that the .constable was certainly liable upon his own bond, that the sureties, in order to bring before this court the question of their liability on the bond, should have severed from the constable in their assignments of error, and having joined with him therein they cannot have the benefit of any error so assigned that is not equally good as to him. The assignments of errors are regárded as a declaration; each assignment as a count of the declaration, and a joint assignment must set forth error available to all who join in it. If not good as to all it is not good as to any. But this rule has no application to the facts of this case. If, under any possible state of facts, the constable could be held liable, on his bond, for an act, and the sureties not held liable for that act, in this case the defendants were sued jointly and the plaintiff must recover against all of the defendants or none. ■ The judgment is a joint judgment and if erroneous as to one or more of the appellants must be reversed as to all. The right of each defendant in the case was affected by any error committed upon the trial, and all of the defendants may, upon a joint appeal and joint assignment of error, take advantage of any error committed against any one of the defendants upon the trial. “The assignment of errors should be considered as joint and several, or joint or several, according to the nature of the error assigned and as affecting the respective plaintiffs in error.” Fisher v. Thirkell, 21 Mich., 1-24; Greenman v. Harvey, 53 Ill., 386. The allegation of the declaration is, that the act which caused the injury to Augusta Balaban was done wilfully and maliciously by the constable, “acting under said execution and by color of his office as constable.” The statute in force at the time the bond was executed provides that a constable’s bond “shall be made payable to the people of the State of Illinois, and shall be held for the security and benefit of 'all suitors and others who may be injured by the official acts or misconduct of the constable.” The authorities upon the question whether there is a right of action on the bond of a constable or other ministerial officer for damages resulting from a malicious act committed by him while acting under the color of his office in the performance of an official act are conflicting. We shall not enter upon an examination of these authorities, but content ourselves with stating our ■conclusion, that upon the facts disclosed in this record, the constable was in the performance of an official act, the act of making" a levy under an execution in his hands upon the goods of the judgment debtor, when he injured Augusta Balaban; that the wrongful act which caused the injury was directly connected with the levy, of the execution and therefore such act must be regarded as official misconduct on the part of the constable, and that for the damages resulting from such act there is a right of action upon his official bond. This conclusion is supported by the following cases: Cash v. The People, 32 Ill. App., 250; Turner v. Sisson, 137 Mass., 191; Huffman v. Koppelkom, 8 Neb., 344; State v. Beckner, 132 Ind., 371; Risher v. Mehan, 11 Ohio Circuit Ct. Rep., 403, and cases there cited. The damages awarded cannot under the evidence be held excessive. . The judgment of the Circuit Court will be affirmed. Affirmed.