State ex rel. Coleman v. Cason

The opinion of the court was delivered by Willard, C. J.

The action is against the sheriff and his sureties on his official bond, for failure to pay money received on executions. On the trial, which resulted in a verdict for plaintiff, the court refused certain requests to charge, and this refusal is the only ground of exception to the verdict. The first request involved the proposition that no suit can be maintained upon the sheriff’s official bond without a previous order of the court. This objection is not well taken. The statute {Qm. Stat. 215, §11,) provides that “ the bond of any public officer in this state may, at all times, be sued on by the public, any corporation or private person aggrieved by any misconduct of any such public officer.” The sheriff, in the execution of ordinary process, acts as a public officer, and is thus within the provisions of the -statute. The principle that the courts will not permit one acting under their immediate orders and supervision to be sued for such action, independently of a due control over such proceedings, is inapplicable to such a case. If the objection had been valid it could not have been taken by way of charge. - The time to raise the question would have been before the defendant .had answered, as it involved the question of his obligation to answer. If, however, he submits to answer, the court would presume an order when necessaiy and not permit that fact to be put in issue in the cause.

It is objected that a recovery having been had against the sheriff for the misconduct alleged, he cannot be joined in the action on the official bond. Even if pleaded properly, which it was not, this is not a defence. The bond is a different cause of action from that on which the judgment was recovered. The bond is alleged as a joint bond, and the sheriff, as one of the joint' obligors, was a proper party.

The next proposition is, that the plaintiff cannot recover upon an allegation of judgment recovered against Henry S. Cason alone, and that the act of Henry S. Cason should be charged, which rendered his sureties liable. The last part of this propo *395 sition is contradictory to the complaint, which does allege the fraudulent withholding of money collected under execution. The first part of the proposition was equally objectionable. It appears from the brief that the record of the recovery against Cason, the . sheriff, was only admitted on the trial as against him, and that parol testimony was submitted as against the sureties. The record of the recovery against the sheriff was clearly admissible against his sureties without previous proof of notice of the pendency of the suit against the sheriff and an opportunity to defend the same, and was prima facie evidence of a breach of the condition of the bond. Treasurers v. Temples, 2 Spears 48 ; Treasurers v. Burch, 2 Hill 519 ; Norton v. Wallace, 1 Rich. 507 ; S. C., 2 Rich. 460 . Cases arising on official bonds stand on a different principle from those that were discussed by this court in Smith v. Moore, 7 S. C. 209. In the class of cases there considered, the surety or administrator was to be considered as in some sense interested, directly or indirectly, in the subject matter of the action against the principal or party indemnified, and, as such, should not be bound by such judgment unless an opportunity had been afforded him to protect such interest. Hence the necessity for notice and an opportunity to defend. The contract of the surety on an official bond has reference to the general conduct of the officer within the sphere of his office, and not to his particular conduct in cases and transactions that should arise in the discharge'of his official duties, and therefore they have no concern or interest to protect in an action brought against such public officer by one aggrieved by his misconduct. The law presumes that a judgment recovered against the principal rests on sufficient grounds of proof, but allows that presumption to be rebutted by proper evidence. It does not appear that any evidence rebutting such presumption was submitted to the jury in the present case, and therefore it was competent to rest the ver'dict on such judgment as proof of official misconduct. The objection that the complaint does not state a cause of action, has no foundation.

The fifth and sixth requests to charge relate to matter waived by failure to demur or answer.

An objection was discussed in the argument on the ground *396 that the verdict should not have included costs recovered against the sheriff, but no such exception appears on the record, showing a defect in the charge in that respect, and it cannot be considered.

The appeal must be dismissed.

Appeal dismissed.

McIver and Haskell, A. J.’s, concurred.