This is an appeal from a judgment entered pursuant to an order sustaining the defendants' demurrer to the complaint and dismissing the action. The appeal presents but a single question and that is whether or not the plaintiff presented his claim to the State Bonding Fund within the time required by statute. The defendant Bonding Fund was the surety on Drinkwater's bond. The complaint alleges that on or about October 24, 1922 one Drinkwater, acting in his official capacity as sheriff of Burke county, wrongfully converted certain property belonging to the plaintiff. It further alleges that on or about October 30, 1923, judgment was entered in the district court in favor of the plaintiff and against Drinkwater for the sum of $919.50 *Page 20 damages on account of the wrongful conversion occurring approximately a year before. It alleges the issuance of an execution and its return unsatisfied on April 16, 1924, and that thereafter, on or about the 19th of April, 1924, the plaintiff caused a duly verified proof of claim against the Bonding Fund to be mailed by registered mail to the Commissioner of Insurance; that more than sixty days have elapsed since the proof of claim was filed and that the claim has not been acted upon and the judgment remains unsatisfied.
Section 7, chapter 158 of the Session Laws of 1919, with respect to the filing of claims against the state bonding fund, provides:
"Immediately upon, and in no event later than sixty days after, the discovery of any default or wrongful act on the part of any public employee for which the state bonding fund is or may become liable, the state auditor, county auditor, city auditor, . . . and any person injured by such default or wrongful act may, file with the commissioner a claim against the state bonding fund."
It has heretofore been held, Madden v. Dunbar, 52 N.D. 65,201 N.W. 988, that this section creates a condition precedent to the claimant's right of recovery and that compliance therewith is mandatory and should be alleged in the complaint. Hence, there can be no question but what the complaint is defective in the failure to allege compliance with this section of the State Bonding Fund Act.
It is stated by the appellant, however, that the property seized and converted to the sheriff consisted of grain that was seized under claim and delivery papers issued in an action then pending against the husband of the plaintiff. It seems that the plaintiff's husband had given a mortgage upon the grain and that this plaintiff in that action served the sheriff with a third party claim; whereupon the plaintiff in the claim and delivery action gave to the sheriff a bond, as required by statute. The grain was later sold and the proceeds applied on the mortgage to the plaintiff in the claim and delivery action. In January, 1923, this plaintiff commenced action against the sheriff and judgment was entered against the defendant the following October for $919.50. From these facts it is argued that the sheriff was guilty of no default or wrongful act, within § 7 of chapter 158, which would start the sixty-day period running. It is said that the sheriff simply performed his official duty. We are clearly of the opinion that this contention can not *Page 21 prevail. The conversion action against the sheriff is predicated upon the wrongful seizure of the plaintiff's property and it affirmatively appears that this seizure was known to the plaintiff at the time. But, even though this point be ruled in favor of the plaintiff and appellant, it still appears that a judgment was obtained against the sheriff on October 3, 1923, based upon the earlier conversion and that there was no notice to the bonding department, until April 17, 1924, shortly after the execution had been returned unsatisfied. The sheriff was, of course, in default at the time the judgment was rendered and not merely from the time the execution was returned unsatisfied. Hence, we are of the opinion that this case is controlled by the case of Madden v. Dunbar, supra.
The judgment and order appealed from are affirmed.
CHRISTIANSON, Ch. J., and JOHNSON, BURKE, and NUESSLE, JJ., concur.