Juana de la Garza v. John M. Carolan, 31 Tex. 387

Lindsay, J. —There can be no serious doubt, we apprehend, that a sheriff and his securities upon his official bond are liable to any and all persons who may have been injured by his failure to perform the duties and fulfill the conditions undertaken and stipulated to be performed and fulfilled in the terms of the bond. For that purpose official bonds are required by law to be executed by the incumbents of office.

Among those conditions and obligations of duty in a sheriff’s bond are, that he will “ due return make of all process and precepts to him lawfully directed,” and “ pay over all sums of money collected by him by virtue of any such process or precept to the persons to whom the same are due or their lawful attorney.” For actual injury sustained by the clerk, the appellee in this case, the sheriff and his sureties were liable to him on the official bond in the form of action upon the bonds which the plaintiff in the court below chose to adopt.

It is in the nature of a common-law action upon the covenants in the bonds, with breaches assigned for non-performance. To hold the securities of the sheriff responsible for any injury done by him to the clerk in the exercise of his office it was necessary for the clerk to sue upon the official, bond. But he had his election to sue the sheriff" for money had and received, if the sheriff had collected, money belonging to him which, ex aequo et bono, he ought to pay over. In the latter case the sureties would not be responsible.

In the former both the sheriff and his sureties are amenable to any person injured by the sheriff in the discharge of the duties of his office. And if, by virtue of his office, he gets possession of the money of another, and converts and refuses to pay it over upon demand, upon his bond he and his sureties are liable to the injured party, because the statute so declares. The act requiring the execution of the official bond was passed to afford an adequate and secure remedy to all persons against abuses of this public trust.

And this is the only remedy, in our opinion, which the statutes of Texas have provided against the sheriff for the clerk, or for any private individual who is not a party to the process or precepts emanating from the courts, to render him and his securities responsible for injuries sustained by his acts while in office. There are certain remedies given in the statutes by motion to parties who have suits, and who have been compelled to appeal to the courts to enforce their demands.

These remedies by motion are whips placed in the hands of the party to the record to coerce the ministerial officer to the punctual discharge of his duty, under pain of being subject to these

summary and punitory proceedings of three days’ notice, ten per cent, damages upon the amount and ten per cent, per month until paid, in addition to the original debt, interest and costs. The action in this ease is not by motion, but is founded upon the bonds. The clerk would have no right under the law to proceed by motion unless he were an actual plaintiff in the execution upon which the motion was based. In the case of De la Garza v.

Booth, decided by this court at the fall term, 1866, [28 Tex.,478,] which, like this, was a suit upon the bond, and not a motion against the sheriff and his sureties, the court decided that, the party having elected his mode of remedy by a suit on the bond, “his measure of damages, if his case was made out and sustained by the requisite proof, would be the actual injury sustained, which is the amount of money collected and not paid over, with interest from the date of the demand of payment.” This being a suit upon thé bonds, and not by motion, the plaintiff could only recover the amount of money collected by the sheriff belonging to the clerk and not paid over upon demand, together with the interest and costs of the suit.

The judgment of the court was against the sheriff and each set of his sureties for a gross sum, denominated “the debt, damages, and interest, with interest thereon until paid, and costs of suit.” What is meant by the damages we are left to conjecture. But we must suppose it means the ten per cent, damages given in the statutes, in eases of motions by a plaintiff' in an execution against the sheriff and his sureties for the failure of the sheriff to pay over money collected upon an execution, or for failure to return an execution or executions as required by law.

If such is its meaning, it is a fatal error in the judgment. The appellee, the clerk, is entitled to no such damages, either for a failure to pay over money collected upon an execution or for a failure to return an execution in which he is not the actual party plaintiff.

The mere fact that the costs of the suit, incurred by the successful party, is taxed against the defendant in the execution which is issued, with the indorsement of the items of the bill of costs thereon, among which items are the fees of the clerk, does not give the clerk control over the execution; and, in legal contemplation, he is no party to it, and is not, therefore, entitled to the penal remedy by motion. He has, therefore, no claim to such damages. The law gives appropriate and peculiar remedies to clerks for their fees.

They have a right to exact security for costs of every suitor who institutes proceedings in his court, except of paupers and of the state. Moreover, if he has not demanded such security, or even when it has been given, he may still issue executions against the party from whom fees are due, plaintiff or defendant, as soon as the suit is determined; in which he will then become the real plaintiff in the execution, and upon which he may hold the ministerial officer and his sureties liable, by the

summary method of motion upon default of the sheriff, and thus entitle himself to damages, as any other plaintiff in an execution. (Paschal’s Dig., Art. 3831.) But we do not perceive that our laws, as declared in

article 3781, 3796, and 5106 of Paschal’s Digest, intended to give to clerks a higher niche in the temple of favoritism than the rest of mankind. The plaintiff in an execution is entitled to demand the whole proceeds of the execution from the sheriff, embracing all the taxation of costs against the defendant. It is the indemnity to the plaintiff for his liability to the officers of the court for the costs which he may either have actually paid them, in the progress of the suit, or which he may have secured to them in a hond for costs.

The indorsement of the several items on the execution is the presentartion of the fee bill required by law before payment, which is designed to carry out the policy to afford a check upon the officers against charging excessive fees. The plaintiff and defendant in all suits are immediately and directly liable and responsible to the clerk for the costs incurred by them respectively.

It cannot be doubted, we think, that the payment of the whole proceeds of an execution to the plaintiff in that execution, costs and all, would entirely exonerate the sheriff from responsibility to the clerk and other officers of the court for the costs, and might be successfully relied upon either in a suit upon his bond or otherwise.

It would be a literal compliance with the terms of the bond “ to pay over all sums of money collected by him by virtue of any such process or precept to the person to whom the same is due.” The parties themselves, then, being immediately and directly liable to the clerk, the plaintiff, by bond for costs, as well as by execution therefor, expressly given in favor of the clerk, eo nomine, the clerk is no party, but is in fact a stranger, to all executions issued from his court in favor of other plaintiffs, and has no legal authority to proceed against the sheriff upon his bond, or otherwise, for his failure to “ make due return of all process and precepts to him lawfully directed ” in the name of other parties.

As well might a common creditor of the plaintiff in an execution insist that he was injured by the failure of the sheriff to make such return, because he might thereby be defeated in the recovery of his just demand against such plaintiff, and therefore claim the right to sue upon his bond, or give the notice of a motion, and ask for damages. Such a construction of .the various acts' authorizing proceedings against the sheriff for remissness and defalcation in office would be a distortion of the plain meaning of their language, and a perversion of the obvious intention of the legislature.

Yet this proceeding, from the allegations in the petition and from the judgment of the court, seems to have been conducted upon such an

interpretation of the statutes, giving remedies against the sheriff and his sureties. In the suit upon the bonds the clerk had no right to recover from the sheriff and his sureties anything more than the actual amount of money belonging to the clerk, and which the sheriff had got into his possession by virtue of his office, and had refused to pay over on demand made, together with the interest thereon from the date of the demand. In the determination of the case in the court below, although the action was only a suit upon the bond, the principles of law applicable alone to the

summary remedy by motion were applied to fjx the nature and extent of the liability of the sheriff" and his sureties. This was error. Wherefore the judgment is reversed, and the cause remanded and a new trial awarded. Reversed and remanded.