
    Patrick Fay, et al., v. James M. Edmiston.
    1. AmeRCement; Sureties. An order or judgment of amercement against a sheriff is only prima facie, and not conclusive evidence against his sureties.
    2. Judgment against Sherife ; Question as to Sureties. In an action against the sureties the question is not whether the judgment against the sheriff was obtained by fraud, collusion or mistake, but whether, upon the facts as they really existed, there was any liability. The judgment is prima facie evidence of the truth of the charges, but those charges are open to inquiry. The question is not how the judgment against the sheriff was obtained, but ought it, upon the facts, to have been obtained? ' Was there, in truth, a breach of the bond?
    
      Error from Jewell DistHot Court.
    
    At the September Term, 1880, of the district court, Edmis-ton, as plaintiff, recovered a judgment for $952.25 against defendants, Fay and two others, who bring the case here. The nature of the action, and the facts, appear in the opinion.
    
      C. Angevine, for plaintiffs in error:
    The principal question raised by the record is: In a suit against Smith, and the sureties on his official bond, is the order of amercement against him conclusive evidence against the sureties of the plaintiffs right to recover, and of the amount of his recovery? The general rule is, that a judgment binds no one but parties and privie^s thereto. (6 Wait’s Actions and Defenses, 787-8; 20 Ark.-629; 17 Serg. & E. 358; 1 Starkie Ev., part 1, 192; 43 Ind. 51, 58; 1 Gr. Ev. §522; 12Kas. 139.)
    The plaintiffs in error were in no sense parties to the amercement proceedings. (1 Gr. Ev., §523; 64 Pa. St. 242; 6 Wait’s Actions and Defenses, 802; 50 Barb. 397; 33 Ala. 469; 15 Wis. 1; 2 Gratt. 250; 31 Conn. 530; 23 Ga. 418; 34 Me. 172.) Neither were they privies. (Herman on Es-toppel, pp. 49, 50, §56; 24 Wend. 35; 8 Blackf. 9; 25 Ala. 300; 31 id. 659; 4 Hawks, 34; 17 Serg. &R. 358; 12Kas. 127; Bigelow on Estoppel, 75; 64 Pa. St. 242.)
    Being neither parties nor privies to the order of amercement, the sureties are not estopped by it, but may máke any defense in an action against them that Smith might have made in the amercement proceedings. (4 Hawks, 34; 14 Cal. 202,204; 7 Ga. 445,456; 35N.Y.121; 15 id. 405; 5Bin-ney, 184; 12 Wheat. 515; 4 Hill, 522, 530; 5 id. 131,136; 3 N. H. 491; 5 id. 63; T Greenl. 198; 9 Yerg. Ill; 24 Wend. 35, 58; 2 Gill & J. 235; 2 Eand. 318, 343; 14 Ohio St. 73, 76; 7 Nev. 163; 15 Mass. 6; 54 id. 309; 4 Coldw. 199; 3 Har. & M. [Md,] 242; 6 Ala. 826; 3 How. [Miss.] 236; 30 N. J. Eq. 435; 64 Pa. St. 242; Bi’ant on Surety-ship, 524; 6 Wait’s Actions and Defenses, 787-8; 1 Gr. Ev. § 252; tier man on Estoppel, pp. 49, 50, § 56 ; 70 N. Y. 253; 1 Blackf. 787; 2 id. 26, 222; 9 La. Ann. 74; 16 Ga. 578; 1 Stark. Ev, 323; 43 Ind. 51, 58; 20 Ark. 629.)
    
      
      Everest & Waggener, for defendant in error:
    In the amercement proceedings against the sheriff, if judgment had been entered in his favor, in a subsequent action against the sureties, they could plead such 'judgment -as a complete bar to the action against them, although they were not in fact parties to the original proceedings. (56 Mo. 437; 13 La. Ann. 249.)
    In the case of Knox v. Merrill, (22 Kas. 587,) it is decided that an order of amercement is a judgment. Under the pleadings, we insist that the judgments were conclusive as against the sureties on the bond. (3 Ohio, 488 ; 2 id. 349 ; 4 Wash. 31; 10 Wall. 588; 7 Barr, 265.)
    In Fay v. Ames, 44 Barb. 327-335, which was an action against the sureties of a deputy sheriff, the court says: “The surety is not at liberty, in such actions upon the bond, to litigate over again the liability of the sheriff in the former action ; nor to prove any facts in exoneration of his principal, which the latter set up as a defense in the. former suit. Where parties join in. a bond of indemnity, as principal and sureties, they are in privity of contract with each other, and are to be regarded and treated, quoad the contract, and the rights-and liabilities growing out of it, as one person. In such case, notice to one is notice to all.” (See also 2 Fla. 598; 5 Allen, 409 ; 36 Vt. 308 ; 20 Pick. 53; 7 Barr, 265; 5 Porter, 202; 1 J. J. Marsh. 177; 27 Mo. 340; 25 Cal. 224; 23 Kas. 242-244.)
    In Freeman on Judgments, §180, p. 88, it is said that “the rule applicable to the sureties of an administrator, is, in general, applicable to sureties on the official bonds of sheriffs, constables, guardians and trustees.” ' (See also 7 Pa. St. 265; 15 Ill. 159; 8 Watts, 398; 17 Serg. & R. 354; 5 Whar. 144; 4 McLean, 125.)
    In any event, judgments of amercement are prima facie evidence against the sureties, and such prima facie evidence can only be rebutted by showing fraud, collusion, or mistake in the rendition of the judgment. (4 McLean, Ct. Ct. 577; 38 Miss. 476; 16 Ga. 578; 115 Mass. 27.)
   The opinion of the court was delivered by

Beewer, J.:

At the March term, 1877, the district court of Atchison county gave judgment amercing A. B. Smith, sheriff of Jewell county, which judgment was excepted to, and subsequently, at the July term, 1878, affirmed by this court. (Smith v. Marlin, 20 Kas. 572.) After the affirmance of the judgment of amercement, it was duly assigned to the defendant in error, who thereafter instituted an action in the district court of Jewell county, against A. B. Smith and the sureties on his official bond, viz., Patrick Fay, J. D. Robertson and O. L. McClung, to recover judgment for the amount in which the district court of Atchison county had amerced A. B. Smith, as sheriff of Jewell county. A certified copy of the judgment of amercement was attached to the petition of the defendant in error, as a part thereof, and also a certified copy of the official bond of said A. B. Smith. To this' petition the plaintiffs in error filed an answer, admitting that James M. Edmiston was the owner of the judgment against A. B. Smith, and that the same had been duly transferred to the plaintiff, but denied each and every other allegation therein contained.

A special defense to the cause of action set forth in the petition of the plaintiff is alleged in the answer, which is substantially the same defense presented by the sheriff, A. B. Smith, to the motion made to amerce him in Atchison county. (20 Kas. 572.) There is no allegation in this answer that the judgment of amercement was obtained by fraud, nor does the. answer contain ' any defense to the judgment. To this-answer the plaintiff filed a reply, (general denial,) and thereafter filed a motion for judgment on the pleadings, notwithstanding the answer of the defendants. This motion was sustained, and judgment entered in favor of the plaintiff and against the defendants. The defendants excepted to this judgment, and now seek a reversal.

Since this case has been filed in this court we have decided that the order or judgment in amercement pleadings against the sheriff is only prima facie, and not conclusive evidence against the sureties. (Graves v. Bulkley, ante, p. 249.) That case was pending before us for some months, and was the subject of special examination and study. That decision practically disposes of this case. It settles the main question. It is useless to enter upon any further discussion of it, yet we cannot forbear saying that the counsel in this case have filed very full and satisfactory briefs upon the subject — briefs which would have assisted us materially in our examination. Counsel for defendant in error further urge that — we quote from their brief — in any event, judgments- of amercement are prima facie evidence against the sureties, and such prima facie evidence can only be rebutted by showing fraud, collusion, or mistake in the rendition of the judgment.

We do not so understand the rule. The order or judgment is prima facie evidence against the sureties, and if nothing further is offered, the plaintiff is entitled to a judgment against them but if they seek to make a defense, that defense is not as to the manner in which the judgment was obtained, but as to the truth of the charge upon which that judgment was based. Conceding that there was no fraud, collusion, or mistake in the judgment as rendered, and still it does not follow that judgment must go against the sureties. The sheriff, honestly endeavoring to make a defense, may ha,ve omitted some material fact, and so judgment may properly be rendered against him upon the facts as presented; or, he may unintentionally but negligently have omitted to make the proper return upon the process in his hands, and leave to amend and correct his return may be refused, and so the judgment be correctly rendered, (the question of amendment of return was one of the principal questions in the case as presented in 20 Kas., supra,) and yet upon the facts as they really existed, the sheriff may not have been guilty of any wrong or chargeable with any amercement. The question is not how the plaintiff obtained his judgment against the sheriff, but are the charges upon which that judgment was based really true?” The judgment is prima faoie evidence of their truth, but not being conclusive, the facts themselves are still open to investigation. So that the original facts are open to inquiry in this action. It is evident to our minds, however, that the judgment against the sureties was entered by the district court upon the theory that the judgment against the sheriff is conclusive against them. That being erroneous, (Graves v. Bulkley, supra,) the judgment must be reversed, and the case remanded for further proceedings.

A technical question might be raised upon the identification of the defense presented with the matter upon which the amercement judgment was based. The record does not distinctly show upon what ground the amercement was based, and the facts stated in the answer do not exclude the possibility of other matters being in fact the basis thereof. Still, counsel, familiar with the facts and knowing the identity, have made no question of that kind before us, obviously seeking no unjust advantage of each other, and seeking a decision upon the substantial and vital questions of difference. The judgment will be reversed, and the case remanded for further proceedings.

VALENTINE, J., concurring.

Horton, C. J., not sitting.  