Studebaker v. Johnson

Opinion by Clogston, C.: Plaintiffs contend that upon the findings of fact found by the court they were entitled to a judgment against Johnson, as sheriff, and the sureties on his official bond. Whatever money was received by Johnson as sheriff under the order of sale was received during his first term of office. This money was duly paid over to the plaintiffs. It was his duty^however, at the time of making the sale to collect all of the purchase-money; and where a sheriff fails to collect all of the purchase-money at a sale made by him under an order of sale, and afterward makes his return showing such sale to have been regular, and allows the same to be confirmed, it is then too late for him to contradict the recitals of his return. (Ferguson v. Tutt, 8 Kas. 370; Thompson v. Building Ass’n, 23 id. 209.) It being his duty to receive the money at the time of the sale, which was during his first term of office, the sureties on his second bond, executed afterward, would not be liable, although the sale was confirmed and a deed to the property made during the term of office for which they gave bond-. Therefore, as to the judgment against the sureties on the second bond, or bond sued on, it must be affirmed. Plaintiffs, however, insist that as their petition set forth the entire transaction, and showed the liability of the sheriff for the balance of the purchase-money, they are entitled to a judgment against Johnson as sheriff for the money. In this we think the plaintiffs are correct. He was liable to the plaintiffs for the remainder of the purchase-money, and no cause of action would exist upon either bond unless the sheriff would have been liable had no bond been given. The sheriff’s liability is not fixed by the bond, but he is liable for his official acts or for the non-performance of such things as the law makes it his duty to do, independently of his bond. (Forsythe v. Ellis, 20 Am. Dec. 218.) Johnson and his bondsmen are liable for his official acts during the first term of his office, and are liable [329] for all money received by him during that term of office, and liable for all money which it was his duty to collect upon this sale; but as the record shows that there were some other matters which the court did not pass upon, and also shows that there were some other payments made to the plaintiffs in addition to the $200 received at the sale by the sheriff and turned over by him to the plaintiffs, and that a certain tax-sale certificate upon the property sold under the order of sale was assigned to them by the purchasers at the sheriff’s sale, which was afterward redeemed, and the money received by the plaintiffs, which of course they would have to account for— for these reasons a new trial must be ordered. It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for a new trial according to the views herein expressed. By the Court: It is so ordered. All the Justices concurring.