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Downer v. United States Fidelity & Guaranty Co.

January 26, 1931

DOWNER
v.
UNITED STATES FIDELITY & GUARANTY CO. OF MARYLAND



Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.

Author: Davis

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a judgment of the United States District Court entered upon a compulsory nonsuit.

The plaintiff, a citizen of Pennsylvania, brought suit in assumpsit against the United States Fidelity & Guaranty Company of Maryland, surety on the official bond of Dallas H. Auvill, sheriff of Barbour county, W. Va., to recover damages for false arrest and imprisonment. The following statute of West Virginia provides that: "Upon any such bond * * * suits may be prosecuted from time to time in the name of this State * * * for the benefit of * * * the person injured by a breach of the condition of any such bond."

The trial judge held that, before the plaintiff could recover from the surety on the bond, it was necessary for him either to sue the sheriff alone and procure a judgment against him which would fix his liability or to sue the sheriff and surety jointly. Because the plaintiff did not do either but sued the surety alone, the judge directed a nonsuit against him.

The bond on which suit was brought was conditioned for the faithful discharge by the sheriff of the duties of his office and bound the surety and the sheriff both jointly and severally. The pertinent part of it reads as follows:

"Know all Men by These Presents:

"That we, Dallas H. Auvill of Philippi, West Virginia, as Principal, and the United States Fidelity and Guarantee Company, a corporation duly incorporated under the laws of the State of Maryland as Surety, are held and firmly bound unto State of West Virginia in the sum of Twenty Thousand Dollars ($20,000,) lawful money of the United States of America, for the payment of which, well and truly, to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents."

On the merits, the trial judge found that: "The Deputy Sheriff of Barbour County, without warrant and without authority of law, arrested the plaintiff in the State of Pennsylvania, took him to the Sheriff's office in Barbour County, and at the direction of the Sheriff, placed him in jail where he was kept unlawfully for a period of two months."

Consequently there is no question as to the merits of the case, the sole question being as to procedure.

The Supreme Court of Pennsylvania held in a recent opinion by the Chief Justice in the case of Mintz v. Tri-County Gas Co., 259 Pa. 477, 482, 103 A. 285, that in suits at common law there are three distinct forms of obligations ex contractu: (1) Joint; (2) several; and (3) joint and several. In actions on the first, it is necessary to sue all the obligors together or the survivors of them; in the second, the obligors must be sued separately; but, in the third, they may be sued either separately or jointly. Except where changed by statute, these principles are still applicable. Clement v. Commonwealth, 95 Pa. 107; 9 Cyc. 651; 30 Cyc. 12.

There is no statute in West Virginia or Pennsylvania requiring the principal to be sued and judgment obtained before suit may be brought against the surety. The plaintiff may rely upon the express provisions of the bond in which the surety for a consideration agreed, not only that the principal would perform the duties imposed upon him by law, but would not by virtue or under color of his office commit an illegal and improper act, but, if he did, it might be sued for damages separately without joining the sheriff, or jointly with him. The obligation imposed by the bond and the liability resulting from a violation of its terms are primary and absolute. It is no answer or defense that the plaintiff has not chosen . to pursue the principal first, if he is following a remedy given by the bond. Murfree on Official Bonds says in ยง 683: "It is not generally necessary, in order to obtain judgment upon an official bond against the sureties, that a judgment against the principal be produced in evidence, or that he be a party to the suit against the sureties. Their liability is direct and not collateral, their bond is joint and several and all that is necessary to obtain a judgment against them is to show a breach by the principal of the condition of the bond, for their undertaking is that such a breach should not occur, and it is immaterial whether the principal is before the Court or not."

That a plaintiff may sue separately a surety, which has bound itself jointly and severally for the faithful performance of the duties of his office by the principal, without first obtaining judgment against the principal, is supported by authority. Grieb v. Northrup, 66 App. Div. 86, 72 N.Y.S. 481; State v. Leeds, 31 N. J. Law, 185; State v. Meyers, 14 Ohio, 538; Snyder v. Commonwealth, 1 Pen. & W. (Pa.) 94; Smith ...


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