Huffman v. Koppelkom , 8 Neb. 344 ( 1879 )

Lake, J.

The action below was brought against the principal and sureties in the official bond of August Koppelkom, sheriff of Dodge county. A general demurrer to the petition was sustained, and the case is brought to this court for review by petition in error. In support of the demurrer it is urged:

First That no action can be maintained upon this bond, for the reason that the obligee named therein is the State of Nebraska when it should have been Dodge county. “All bonds by county and precinct officers shall be given to the county in which said officers are elected respectively.” Sec. 5, chap. 6, Gen. Stat. But this objection cannot be sustained. The obligee in an official bond is not necessarily, nor usually, the party interested therein in actions upon it. The bond being really for the use and benefit of whoever is injured in consequence of the unfaithful performance of duty by the officer, the obligee is really but a nom-' inal party. And .whatever may be the name of this nominal party, the action, under our practice, must be in the name of the real party in interest, although not mentioned in the bond.

As a protection to parties interested in official securities, it is wisely provided in section ten of the same chapter, of the statutes, that: “No official bond shall be rendered void by reason of any informality or irregularity in its execution, etc.” We are of the opinion that*’the mistake in this bond of naming the state, instead of thé county as the obligee, falls within the operation of this provision of the law, and is cured by it.

Second. The second objection to this petition, and the one most relied on in this argument is, that an action can be maintained on an official bond only for injuries done virtute officii, and not for acts done colore officii merely. And so we believe the law to be according to the best authorities. But, admitting the law to be as claimed by counsel for the defendants, still we think the petition states a cause of action. It is true that by one allegation the pleader says the act complained of was done by the sheriff “ under color of his said office,” but on examination of the petition we find facts alleged which show most positively that it was done virtute officii. The petition, after reciting that one Charles Clark had been lawfully committed to the jail of Bodge county, of which the said Koppelkom, as such sheriff, was the jailor, and that while so in custody, and held by a mittimus in due form of law, the said Clark had escaped, and was then at large, subject to arrest by said sheriff, proceeds as follows; “And the plaintiff further avers that the said Koppelkom, being sheriff as aforesaid, and having then and there the said writ of mittimus as aforesaid, did not execute said writ according to law, but on the contrary there-' of, to-wit.: On the seventh day of July, 1878, at and within the said county of Bodge, as such sheriff, acting under said writ of mittimus and under color of his said office, did carelessly, unfaithfully, forcibly, and wrongfully, and unlawfully and violently seize, arrest, and lay hold of the said plaintiff, and did then and there shoot, wound, bruise, and break the left leg of the said plaintiff,” etc.

Prom this quotation it will be seen that the words, “ and under color of his said office,” are not warranted from the facts distinctly alleged, and may he rejected as surplusage. We are of the opinion that the facts alleged constitute a cause of action. The judgment is therefore reversed, the demurrer overruled, and the cause remanded for further proceedings.

Reversej and remanded.