Urmston v. State ex rel. Kuehn , 73 Ind. 175 ( 1880 )

Elliott, J.

— This was an action by appellee against Alonzo Urmston and the sureties on his official bond as constable. Relator obtained judgment below, and from that judgment •appellants, who were the sureties of said constable, appeal, the principal, Alonzo Urmston, refusing to join. The only error relied upon by counsel, in their brief, is the overruling of their demurrer to appellee’s complaint. This error is well assigned. It appears that said bond was executed on the 3d day of March, 1875, the condition being as follows : “The condition, of the above obligation is such that, whereas the above named and bounden Alonzo Urmston has been duly appointed by the board of commissioners of said county, ■constable for Brookville township, in the county aforesaid,

for the term of one year from the 3d day of March in said year 1875, until his successor shall be elected and qualified: Now, if the said Alonzo Urmston shall faithfully discharge all the duties required of him by any law now or subsequently in force, then this obligation shall be void ; otherwise to remain in full force and virtue in law.”

On the 4th day of October, 1876, appellee placed in the hands of Alonzo Urmston an execution to be levied by him. In November of the same year, said Urmston collected the money on this execution, and converted it to his own use, refusing to pay it over to relator.

The undertaking of the sureties was that their principal should properly discharge the duties of the office of constable for a designated period. The period designated by the bond is for one year, or until the constable’s successor shall be elected and qualified. It certainly can not be construed to extend beyond the election and qualification of a successor. If, however, it is to be construed as covering a period of one year, then the wrongful acts complained of wexe cleax-ly xxot doxxe withixx the time provided for by the bond. A surety caix not be held bouxxd for a longer pexiod thaxx that limited by his uxxdertaking, and such undertakings, as agaixxst the surety, are to be strictly construed. Mullikin v. State, 7 Blackf. 77.

Construixxg the boxxd as limitixxg the period of appellaxxts’ liability to the time exxibraced within the date of the boxxd and the electioxx axxd qualification of a successor to their principal, it had presumptively tex’minated whexx the appellee’s executioxi was delivered to the constable. The xnoxnexit a successor was elected axxd qualified, the sureties ceased to be liable oxx their uxxdertaking. For acts doxxe withixx the term they of course remained liable, but with the expix-ation of the texmi their liability as to all other acts ceased.

The complaixxt is bad for the reasoxx that it does xxot show that a successor to appellants’ principal had xxot been elected and qualified. In the absence of an averment to the contrary, the presumption is that a successor had been elected.

It is provided that “vacancies in the office of constable shall be filled by appointment,” and that the person so appointed shall “hold until a successor is elected and qualified, who shall be elected at the next township election.” 1 R. S. 1876, p. 922. We know judicially that a township election was held on the second Tuesday in October, 1875, at which a successor ought to have been, and we must presume was, elected. The presumption, until rebutted, must be that the official term of the appellants’ principal had expired when the execution was delivered to him. The undertaking of the appellants was to answer for his acts as constable, and as he was not, as we are bound to presume, an officer at the time the wrongful acts complained of were done, they can not be held liable on the bond sued upon. Rany v. The Governor, 4 Blackf. 2.

Judgment reversed.