Opinion
No. 36099.
April 22, 1946.
1. APPEAL AND ERROR.
In action against highway patrolman and surety on his official bond, where no objection was made that bond was not exhibited although declaration erroneously stated that a copy of the bond was attached as an exhibit, the point could not be raised for the first time in Supreme Court.
2. LIMITATION OF ACTIONS.
Action against highway patrolman for injuries inflicted while committing an assault upon plaintiff in exercise of patrolman's authority and duty and against surety on official bond was an action against a public officer and surety on his bond for a breach thereof and was governed by limitation applicable to an action upon bond rather than one year limitation for assault and battery (Code 1942, sec. 732).
APPEAL from the circuit court of Grenada county, HON. JOHN F. ALLEN, Judge.
W.B. Nicols and S.C. Mims, both of Grenada, for appellant.
The official bond of a public officer is a contract which the law requires him to execute, by which he and his sureties covenant and agree that he will faithfully discharge all of the duties of his office, which contract is breached by the failure of the officer to discharge any of his official duties. It follows, therefore, that in the absence of a statute to the contrary, the limitation within which an action must be brought on an official bond is the limitation provided by statute in actions on written contracts.
State for Use of Smith, v. Smith, 156 Miss. 288, 125 So. 825; Lewis v. State, 65 Miss. 468, 4 So. 429; 37 C.J. 782.
Through inadvertence a copy of the bond of the appellee, Joe H. Carsley, was not attached to the declaration, but no demurrer was filed, nor any other pleading which would call this matter to the attention of the court, and if a demurrer or any other pleading had been filed the appellant would have been allowed to amend. Since this matter was not raised in the circuit court, it cannot be raised for the first time in the Supreme Court.
R.P. Sugg, of Eupora, for appellee, Joe H. Carsley.
Appellant in his declaration alleges an assault and battery committed on him by the appellee. An action of this nature is governed by the one year statute of limitations, set forth in Section 732 of the Code of 1942. The joinder of appellee's surety does not make the six year statute of limitations apply, for the reason that the action is not one on the official bond, but remains the same as if no bond had been executed.
State for Use of Smith v. Smith, 156 Miss. 288, 125 So. 825; Bell v. Kansas City, M. B.R. Co., 68 Miss. 19, 8 So. 508; Lewis et al. v. State, 65 Miss. 468, 4 So. 429; Compare Jones v. Alden Mills, 150 Miss. 90, 116 So. 438; 37 C.J. 176; 19 Am. Eng. Enc. of Law (2 Ed.) 280; Black's Law Dictionary (3 Ed.), p. 1754, trespass vi et armis; 43 Am. Jur. 444.
Cowles Horton, of Grenada, for appellee, Fidelity Deposit Company of Maryland.
On July 31, 1943, appellee, Carsley, is alleged to have committed an assault and battery upon the appellant. For this offense appellant brought his suit for actual and punitive damages. The statement of facts presents, if true, a cause of action against Carsley and allegations about his office and his bond should merely be considered as surplusage. This is true because there is no statement of a contract case nor anything to indicate any legal connection with this suit of Mr. Carsley's co-defendant. Assuming appellant's right to sue Carsley either in tort or on his bond, it is clear that this is a simple suit against that defendant for what he personally did. As such a case the declaration against Carsley would be good except for the fact that the action for which the declaration is good was barred by limitations (Section 732, Code of 1942).
The court below acted purely on the case which was presented by the declaration. Beyond the declaration neither the court nor the parties could have gone. Under it plaintiff could have proved no more than the personal conduct of Mr. Carsley on the occasion stated and when this was done the case would have failed because not brought within the time allowed by law. The court knew at that time, of course, that no liability of a contractual nature against Carsley and no liability of any kind against the bonding company could be established without proof of the bond itself and that no such proof could be made and no judgment could be sought in connection with the bond because it had not been sued on.
Lawson v. Dean, 144 Miss. 309, 109 So. 801; Home Ins. Co. v. Newman, 147 Miss. 237, 111 So. 455; Code of 1942, Secs. 1469, 1470; Griffith's Mississippi Chancery Practice, Secs. 190 et seq.
Appellant relies for reversal on the case of State for Use of Smith v. Smith, 156 Miss. 288, 125 So. 825. That case has no application to the case at bar and the learned court below correctly so held. That suit was expressly on the contract itself and was brought, not against the officer who committed the wrong, but against his principal and the surety on the principal's bond. In that case nothing personal was charged against the defendants but they were sued purely under and by reason of a breach of their written contract. If in this case Carsley had been left out and his principal and bondsman only had been sued or if this suit had been upon the bond itself the learned court below would have had before it a case wherein the Smith case would have been more nearly applicable.
Appellant filed suit for personal injuries inflicted by Carsley, who, as a member of the State Highway Patrol and in exercise of his authority and duties as such, committed an assault upon him. The surety on the official bond, the Fidelity Deposit Company of Maryland, was made a joint defendant.
The record shows that if the one year statute of limitations for such action, Code 1942, Section 732, applies the trial judge was correct in sustaining this plea. The suit, however, is against the officer and the surety upon his official bond.
It is true that the declaration is inartificially drawn and although it purports to attach a copy of the bond as an exhibit, this was not done. Yet no objection was made upon the ground that the bond was not exhibited and the point may not be raised for the first time in this Court. Enochs-Flowers, Inc., v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407. No point seems to have been made as to the necessity for compliance with Code 1942, Section 4034, and we express no opinion thereon.
We are of the opinion that the action is against a public officer and the surety on his bond and that appellant is entitled to undertake to show that the conduct of the officer constituted a breach of his bond. Under the circumstances the pleas interposing the bar of one year as for assault and battery ought not to have been sustained. The suit is upon the bond. State for Use of Smith v. Smith, 156 Miss. 288, 125 So. 825.
We are not here concerned with the probability that appellant's case may or should be perfected by amendment. His right thus to meet objection, seasonably made, is all that we need take into account here.
Reversed and remanded.