Opinion
6 Div. 623.
January 17, 1935.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Frederick V. Wells and William Conway, both of Birmingham, for appellant.
The statute extends the liability of the surety on an official bond to acts done under color of his office which, before its adoption, were regarded as the private individual torts of the principal. Code 1923, § 2612 (3); Scott v. Ryan, 115 Ala. 587, 22 So. 284; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; Deason v. Gray, 189 Ala. 672, 66 So. 646; Pickett v. Richardson, 223 Ala. 683, 138 So. 274; Ziegler v. Com., 12 Pa. 227. The surety can make no defense not open to the principal, where the wrong was committed by virtue of the office. Ingram v. Evans, 227 Ala. 14, 148 So. 593. It is the duty of the clerk to keep the records and papers of all suits for the benefit of the parties to those suits and the public generally. Code 1923, § 6724 (11) (12). And to furnish papers of record on proper application. Code, § 6724 (14). A litigant has the right to rely upon a sworn officer of the law to faithfully perform his duty. Hanover F. I. Co. v. Street, 228 Ala. 677, 154 So. 816.
Lawrence F. Gerald, of Clanton, and Mullins Deramus, of Birmingham, for appellee.
The mere private act of an officer, no matter how negligent, wrongful, or willful, not pertaining to any function or duty which the law imposes, and not done under color of office, creates no official responsibility or liability, though it may create a personal responsibility or liability. Coleman v. Ormond, 60 Ala. 328; McKee v. Griffin, 66 Ala. 211; Mason v. Crabtree, 71 Ala. 479; American Sur. Co. v. First Nat. Bank, 203 Ala. 179, 82 So. 429; Coleman v. Roberts, 113 Ala. 323, 21 So. 449, 36 L.R.A. 84, 59 Am. St. Rep. 111; Burge v. Scarbrough, 211 Ala. 377, 100 So. 653. The mere gratuitous giving of advice by a public official, when there is no duty in that regard, is a mere private act, and imposes no liability upon the sureties on his official bond. Authorities, supra. To constitute "color of office" such as will render an officer's surety liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity. 46 C. J. 1069; State v. Mankin, 68 W. Va. 772, 70 S.E. 764; State v. Enslow, 41 W. Va. 744, 24 S.E. 679; Shelton v. Nat. Surety Co., 235 Ky. 778, 32 S.W.(2d) 339; Brooks v. U.S. F. G. Co., 161 S.C. 66, 159 S.E. 488; Hughes v. Board of Com'rs of Okla. County, 50 Okl. 410, 150 P. 1029; Taylor v. Shields, 183 Ky. 669, 210 S.W. 168, 3 A.L.R. 1619; Chandler v. Rutherford (C. C. A.) 101 F. 774.
This is an action by the appellant against the appellee for breach of the conditions of the official bond of J. Z. Mims as clerk of the circuit court of Chilton county. The defendant's demurrers were sustained to the several counts of the complaint, and the plaintiff took a nonsuit and has appealed.
The assignments of error present for review the court's ruling as to counts 10 and 11.
These counts, in substance, are identical, each relating to a different suit. They aver:
That the plaintiff was one of three defendants in a suit brought and tried in the circuit court of Chilton county. That at the conclusion of the evidence the court on motion of plaintiff in this suit excluded all the evidence going to show his liability and at his request directed a verdict for him. That plaintiff and his attorney left for their homes in Birmingham before the jury had concluded their deliberation and brought in a verdict. That, notwithstanding the instructions of the court, the jury returned a verdict against all of said defendants, including the plaintiff.
The case was tried in Chilton circuit court on November 3, 1933, and on November 7, 1933, plaintiff's attorney wrote and mailed to said Mims, as clerk of said court, a letter in words as follows:
"Dear Sir: Kindly advise results of the trial in the above cases as the writer left the court room before the jury returned."
Mims replied to this letter on November 8, 1933:
"Dear Sir: The following verdict was returned by the jury in each of the above cases: 'We the Jury find for the plaintiff in this cause against the defendants Cliff Clements and W. J. Hooks, and assess his damages at Two Hundred Fifty ($250.00) dollars, under count two of the complaint in this cause.'
"Yours truly, "J. Z. Mims, Clerk."
That plaintiff relied on this information and did not discover that the information therein contained was erroneous until it was too late to move for a new trial. That the information contained in said letter was erroneous in consequence of the negligence of said Mims, and resulted in damage to plaintiff.
The appellant's contention is that in writing said letter the said Mims was acting under color of his office.
If the plaintiff had applied to Mims for a verified copy of the verdict, and Mims had sent him an incorrect copy, this would have brought the matter within the influence of subsection 14 of section 6724 of the Code. Ziegler v. Commonwealth, 12 Pa. 227. On the facts averred, it was not a part of Mims' official, ministerial duty to advise the plaintiff of the result of the trial, and, in responding to the request of plaintiff's attorney, he acted merely as a gratuitous agent of plaintiff's attorney, and in doing so he was not acting by virtue of his office or under color thereof. Mobile County v. Williams, Judge, 180 Ala. 639, 61 So. 963; Pickett v. Richardson et al., 223 Ala. 683, 138 So. 274.
The demurrers to the complaint were properly sustained.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.