Beauchaine v. McKinnon

Colliks, J.

The real questions involved in this appeal are whether in an action brought against sureties in an official bond, given by a sheriff, and-conditioned for the faithful performance of the duties of his office, (1878 G. S. ch. 8, § 193,) a judgment which has been rendered against sncb sheriff for official misconduct is admissible in evidence, and also, if it be admissible, to what extent are the sureties bound. A great number of decisions have been cited upon the subject, and there is much diversity of opinion as to the effect of such a judgment. In some of the states it is held that it is of no value as against sureties, and hence inadmissible in evidence in an action brought to enforce a liability upon the bond. Pico v. Webster, 14 Cal. 203; Lucas v. Governor, 6 Ala. 826; Governor v. Shelby,

2 Blackf. 26; Carmichael v. Governor, 3 How. (Miss.) 236. It is well argued in these cases that such a judgment is res inter alios acta, and therefore of no effect in an action against sureties. In a very large number of states it has been determined that such a judgment is prima facie evidence in an action brought against and involving the liability of sureties upon an official bond. It was so declared in Massachusetts in 1845, the learned Chief Justice Shaw preparing the opinion, (City of Lowell v. Parker, 10 Metc. 309,) although in later cases the court departed from this doctrine, as will be seen upon an examination of the authorities hereinafter cited. That these judgments are at least presumptive evidence as against sureties upon an official bond has been held in Stephens v. Shafer, 48 Wis. 54, (3 N. W. Rep. 835;) Norris v. Mersereau, 74 Mich. 687, (42 N. W. Rep. 153;) Graves v. Bulkley, 25 Kan. 249; Fay v. Edmiston, Id. 439; Charles v. Hoskins, 14 Iowa, 472; Mullen v. Scott, 9 La. Ann. 174; Miller v. Rhoades, 20 Ohio St. 494; Taylor v. Johnson, 17 Ga. 521; Carr v. Meade, 77 Va. 142; De Greiff v. Wilson, 30 N. J. Eq. 435. We gather from Thomas v. Hubbell, 15 N. Y. 405, 35 N. Y. 121, that this rule also prevails in New York.

A variety of reasons have been given in support of this rule, and ' many of them were referred to and commented upon in Stephens v. Shafer, supra. We need not state them.

There is also a very respectable array of authorities which fully sustain the doctrine that, where a judgment is recovered against an officer for official misconduct, and against which sureties upon his bond have covenanted, it is absolutely conclusive on the sureties, in the absence of fraud or collusion, both as to the official misconduct and the extent of the damages. Among these cases may be noted Masser v. Strickland, 17 Serg. & R. 354; McMicken v. Commonwealth, 58 Pa. St. 213; Chamberlain v. Godfrey, 36 Vt. 380; Tracy v. Goodwin, 5 Allen, 409; Dennie v. Smith, 129 Mass. 143,— both these Massachusetts cases are subsequent to City of Lowell v. Parker, sxipra.

(Opinion published 56 N. W. Kep. 1065.)

While the authorities are wide apart upon the question, it is evident that the decided weight is in favor of the doctrine that a judgment against the principal upon an official bond is prima facie evidence against the sureties. By this rule the right is reserved to such sureties to interpose any defense they may have, and to be fully heard on the merits.

After a full examination of the authorities, in deference to the great weight in this direction, and believing that convenience and public policy require and will be promoted by its approval, we accept and adopt the prima facie doctrine. We admit that the rule first mentioned herein, declaring judgments against principals upon official bonds ineffectual as against sureties, is more easily sustained on principle. In fact the piima facie doctrine has less to justify it than that which makes a judgment against the principal conclusive upon his sureties, except where there has been fraud and collusion. There is some difficulty in standing upon the middle ground of presumption.

The counsel for appellants have cited and relied upon the very recent case of Pioneer Sav. & Loan Co. v. Bartsch, 51 Minn. 474, (53 N. W. Rep.. 764.) We regard the views therein set forth as sound on principle, and rest satisfied with the conclusion therein reached; but for the reasons before mentioned we adopt the prima facie rule as the most practical and desirable one when official bonds are involved.

Order affirmed.