Stevens v. Carroll

Deemer, J.— The record is in a very confused state, and, were we to try to untangle it, we should have difficulty in stating .the point for decision as it appears from the abstracts. We have concluded, therefore, to decide the question which appellant has presented in his brief, taking him at his word that this is the only proposition involved. It is this: Plaintiff brought action against the county treasurer alone for damages for the wrongful, unlawful, and malicious assessment of his property for the years 1901 and 1902. Defendant in that suit demurred to the petition, and his demurrer was sustained; judgment being rendered against plaintiff for the costs of suit.' Thereupon plaintiff in that action appealed to this court. Before the case reached us plaintiff commenced this action against the county treasurer and the surety on his official bond for the same wrongful and malicious act complained of in the prior suit, and afterward dismissed his action against the treasurer, leaving the action pending against the surety company alone. The surety company pleaded the judgment in the former case as a bar to this action, and that plea was held sufficient. From this ruling plaintiff appeals. The question is: Is a judgment that a principal is not indebted to his creditors such an adjudication that his surety may rely thereon, although not made a party to the original suit? We shall take it for granted that the judgment in the original suit, although appealed from, was valid and in full force and effect when this case was tried. ' Such seems to be the universal holding. Hackett v. Freeman, 103 Iowa, 296; Watson v. Richardson, 110 Iowa, 700. Moreover, when the case reached us on appeal, the judgment was affirmed. 130 Iowa, 463. This, then, is an adjudication that there was no liability on the part of the principal, the county — 172 — treasurer, to the plaintiff. Notwithstanding this, may plaintiff relitigate that question in an action against the surety on the treasurer’s official bond ? Manifestly the answer must be, “ No.” Even if the defendant company were an ordinary surety, plaintiff could not maintain this action. Beh v. Bay et al., 127 Iowa, 246. Whatever of doubt there may be regarding the correctness of this proposition, as applied to ordinary negotiable instruments, disappears when we remember that this is an action on an official bond. An adjudication in such' a case that the official has not been guilty of any dereliction of duty is certainly binding upon the so-called creditor, and may be pleaded by the surety. Black on Judgments, sections 586-589; Bank v. Ketchum, 66 Wis. 428; Dennie v. Smith, 129 Mass. 143; Brown v. Bradford, 30 Ga. 927; Chapman v. Smith, 16 How. 114, 14 L. Ed. 868. There are many other reasons for affirming the judgment; but, taking the case in its most favorable aspect for plaintiff, there appears to be no error in the rulings of the trial court. The judgment is therefore affirmed.