People ex rel. Norris v. Mersereau

Campbell, J.

This suit was brought on the sheriff’s bond of John McOanna, sheriff of Schoolcraft county, for misconduct in office to the injury of the plaintiffs by seizing and converting their property under an attachment against one William E. Smith. The declaration showed that suit had been brought and damages recovered against McOanna as such sheriff, for the wrong, in the circuit court of the Dnited States for the Western district of Michigan, upon which an execution issued was returned unsatisfied for want of property to be found.

Upon the trial below reliance was had upon this judgment, and the court found for plaintiffs for its amount against Mersereau, a surety on the sheriff’s bond. The questions raised here on error relate to the nature of the grievance, as claimed to be unofficial and outside of the surety’s liability; to the judgment in the Dnited States court, as not admissible against the surety; and to the formal proof of the judgment. This proof consisted of a properly-certified copy, under the seal of the court, of the pleadings, which were special, and on personal appearance, and of the record of verdict and judgment. We can see no objection to this proof. It is a good common-law certificate, and covers everything necessary to show a valid judgment, by showing jurisdiction of person and *689 subject-matter between persons fully impleaded, and verdict and judgment on the issues. As a judgment cannot be attacked collaterally for any mere irregularities, it is only on proceedings in error that all the continuances and other matters of practice in the cause need be mentioned in a transcript. The judgment is shown to be authorized when parties appear and submit proper issues which are determined by the verdict, on which judgment is rendered. No authority is to be found for holding any further proof necessary, and we have not discovered any statute to the contrary.

It is claimed that the sheriff's act in levying on the plaintiffs’ property upon a writ against another party was not an official act, but was a mere private trespass, for which his sureties are not responsible. The authority in Ex parte Reed, 4 Hill, 572 , cited to the contrary, is a very scantily-reasoned holding, on an application for leave to sue a sheriff’s bond, and was overruled ima well-reasoned decision of the court of appeals in People v. Schuyler, 4 N. Y. 173 . 1 The whole subject is fully discussed in Lammon v. Feusier, 111 U. S. 17 (4 Sup. Ct. Rep. 286), by Gray, J., who considers the question very thoroughly, and holds the act to be official misconduct. The authorities are very well brought together in 2 Amer. & Eng. Cyclop. Law, 466i. We think that such a seizure, made under color of a writ, and by authority of office claimed under it, is very clearly official action for which the sureties are liable. A contrary doctrine would render a sheriff’s bond of very little use. Where his acts are legal, there is usually no harm done. It is only when he makes use of his official character to do wrong that he becomes a trespasser, and if his bond does not protect parties injured *690 against his wrong-doing, which nothing but his official character makes formidable, the security is more formal than substantial. The decisions holding such conduct covered by the bond seem to us reasonable and just.

The only remaining question is as to the effect of the judgment. The judgment in the action in the United States court is so clearly one for a wrongful levy as to need no discussion on that point. But it is claimed it has no effect as evidence against sureties, and it is further claimed that it must be conclusive evidence, or no evidence at all. 1

There is certainly some variance in the authorities on the subject, but the prevailing reasons, except where there are statutory difficulties, seem to favor the rule that such a judgment is prima facie evidence against the sureties. That doctrine was held, after full discussion, in Lowell v. Parker, 10 Metc. 309 , and very convincing reasons were given in favor of it. That such a judgment should not be conclusive against the surety, unless he has been notified to defend, or made a party, is well enough based on the possibility of fraud or collusion. But beyond this there is no very good reason for any exception. It is for the advantage of the surety to have the sheriff pursued to judgment, and the exhaustion of execution before he himself is sued, not only because if the sheriff is good the surety will not be harassed by litigation at all, but also because in such cases there is frequently, and always may be, an indemnitor, who becomes jointly liable, and to whom recourse may be had which will relieve or exonerate the surety. And there is no more reason for excluding a judgment, which is usually only obtained after a fair litigation against the sheriff, than the sheriff’s certificates and other admissions, which are less solemn than *691 the judgment. There is very little danger of collusion, and, if collusion exists, it is lawful to show it in defense. There are so many cases where sureties are bound by official acknowledgments and settlements of their principals that it. would be going beyond reason to make an ■exception against judgments, which are far less likely to be careless or mistaken.

There are many states which require an exhaustion of legal remedies before suing sureties, and in such cases the previous judgment must necessarily perform an important part.

This principle was practically recognized by this Court in Lee v. Wisner, 38 Mich. 82 , and it is apparently taken for granted by the case in 111 U. S. 17 , which cited on the main question the state decisions which so hold. 1 In People v. Schuyler, 4 N. Y. 173 , before referred to, the former judgment was the measure of the breach relied on, and the declaration, which was held good, made that point important, and it was evidently regarded as a proper reliance. It would not be profitable to review the cases, which are only instructive as reasons, and not as authority for us. We think the weight of reason and good sense is in favor of giving prima facie credit to the judgment against the sheriff. Most of the cases apparently to the contrary are more' or less distinguishable, and where they are not clearly so they give no very good , reason why a surety who is bound or affected by the declarations and admissions of the officer very generally should not be affected by a fair and honest judgment.

The judgment should be affirmed.

The other Justices concurred.

Counsel for defendant also cited Taylor v. Parker, 43 Wis. 78 ; State v. Conover, 28 N. J. Law, 224.

Counsel for defendant cited 2 Am. Lead. Cas. (4th ed.) 439-451, and cases there cited; Pico v. Webster, 14 Cal. 202 .

See Doran v. Butler, 74 Mich. 643 , for a seemingly contrary holding.