Wadsworth & Co. v. Gerhard , 55 Iowa 367 ( 1880 )

Rothrock, J.

i. stato™ of action on officiaUiond: sureties. By section 2529 of the Code, actions “ against a sheriff or other public officer growing out of a liability incurred by the doing of an act in an official capacity, or by the omission of an official , .... duty,” must be brought within three years, and not afterward. It is conceded by counsel for appellant that, if no action had been brought against the sheriff within the time prescribed by this statute, none could now be maintained against him nor his sureties, But it is urged that as the action against the sheriff was commenced within the prescribed time, and the wrong complained of investigated, and judgment .ren^red against him therefor, and his sureties being thereby estopped from re-investigating said wrongs, they cannot avail themselves of the statute of limitations.

We think the premises of the foregoing propositions are not altogether correct. The sureties are not absolutely es-topped from re-litigating the alleged wrongful act of the sheriff. Indeed counsel concede that a judgment against the principal in the bond is only prima facie evidence against the sureties. This is undoubtedly the correct rule. Charles v. Hoskins, 14 Iowa, 471. It is also true that the sureties can make no defense that could not have been made by the principal. Boone County v. Jones, 54 Iowa, 699. The measure of his responsibility is the measure of theirs. Patterson's Appeal, 48 Pa. St., 245.

Now, if the judgment against the principal is but prirna facie evidence against the sureties, it is competent for the sureties to at least rebut such prima facie showing by evidence of fraud or collusion in obtaining the judgment, mistake in the amount, or that it has been paid, or the like. If this may be done, it seems to us the bar of the statute may be interposed by the sureties. The formal obligation on the bond is joint and several, but whether joint, or joint and several, the plaintiffs might have brought their action against any or all of the parties thereto, whether principal or sureties. If an action had been brought against the sureties, and judgment recovered, and an action had afterward been brought against the principal, there can be no doubt the latter could have availed himself of the limitation provided by statute. If so, it is difficult to see why the sureties may not avail themselves of the same defense. Their obligation is not that they will pay any judgment which may be recovered against their principal. The cause of action against them accrued by reason of their principal’s dereliction of duty, and at the time of such dereliction, and not by reason of the judgment against their principal. As to them, as well as to the principal, the statute commenced to run when the cause of action accrued, and we cannot see how the judgment against the principal could arrest its operation, unless the judgment should be held to be conclusive evidence of the sureties’ liability. That it cannot be so held there can be no question.

Affirmed.