Hubbard v. Switzer

Adams, J. 1. bond: apcei-Iíiaiuuty' lor‘ The surety, before he was accepted as such, made the affidavit provided in Sec. 3062 of the' Code: It is claimed by the appellants that such affidavit having ^een made the clerk could not properly refuse to approve the surety, and that he cannot now be held liable because the security has proved to be insufficient. But this position cannot be maintained consistently with section 250 of the Code, which provides that “ the taking of such affidavit shall not exempt the officer from any liability to which he might otherwise be subjected, for taking insufficient security.” He is not, then, to accept the surety as a matter of course where the affidavit is made. But it is claimed by appellants that he is liable only when he acts corruptly, as when he accepts a surety with knowledge that he is irresponsible. According to this theory if a bond, is. offered with the required affidavit on the part of the surety, and the clerk knows nothing in regard to the surety’s responsibility, it is not incumbent upon him to make any inquiry. But this we think is not the law. The statute contemplates that the surety shall be approved. According to the appellant’s theory a surety who has made the required affidavit must be accepted unless disapproved. As an approval of the surety is required in addition to the affidavit, it is evident that the approval should not be based solely upon the affidavit. It was the duty, of the clerk, then, to [683] exercise reasonable care. But it is contended by the defendants that even if this be so the clerk cannot be held -liable because in approving the bond he was acting in a judicial, and not ministerial capacity. In Wasson v. Mitchell, 18 Iowa, 153, it was held that the approving of an official bond may be either a judicial or ministerial act according to circumstances. In that case it was held that the members of a board of supervisors would be personally liable for negligence in approving the official bond of a constable to which the names of the sureties were forged. It was thought that their duty in that respect was ministerial. In illustrating what-'might be considered a. determination of a judicial character in approving a bond the court referred to Howe v. Mason, 14 Iowa, 510, where a justice of the peace wrongfully decided that a married woman could bind herself as surety upon a bond, and accordingly accepted her. The case at bar involved a determination as to whether tire person offered as surety was pecuniarily responsible for a sufficient amount to secure the judgment which was to be stayed. It required simply the ascertainment of two facts, the amount which the person offered as surety was worth and the amount of the judgment. The ascertainment of neither fact involved the determination of a question of law, or a question of fact upon offered evidence. The ascertainment was to be made by the clerk in his own time and way. In our opinion it was not a judicial determination. ¥e have then to consider whether the clerk exercised reasonable care. The evidence shows that before he accepted the offered surety he was wTarned not to accept him by a person who claimed to have investigated his financial condition. Personally, it appears, the offered surety was not at the time he was offered much known to the clerk. lie had not at that time been living long in Johnson county. He had been living in Benton county. But it appears that in that county, which is near to Johnson county, he wras well enough known, and was notoriously insolvent. It seems certain that any reasonable inquiry by the clerk would have revealed to him the fact that the offered surety was insolvent. It is true he had in Benton [684] county certain real estate, a farm of considerable value, but heavily incumbered. The clerk acted upon the strength of a letter which was shown him, from which it appeared that there was a small margin of value above the incumbrance. The result of the enforcement of the incumbrance proved that the estimate contained in the letter was too liberal, and that in fact there was no margin of value, as the clerk should reasonably have apprehended. It is claimed by the appellants that at the time the judgment was rendered the judgment debtors were insolvent, and that, therefore, no damage has accrued to the plaintiff. The evidence of their solvency is not very satisfactory, but there is not, we think, such lack of evidence upon the point as to justify us in disturbing the judgment. It must, therefore, be Ajteirmed.