Board of School Directors Parish of Lafayette v. Judice

• Decision Date: 01 July 1887
• Docket Number: 1302
• Citation: Board of School Directors Parish of Lafayette v. Judice, 2 So. 792, 39 La.Ann. 896 (La. 1887)
• Court: Louisiana Supreme Court
• Parties: BOARD OF SCHOOL DIRECTORS PARISH OF LAFAYETTE v. J. N. JUDICE, ET ALS

2 So. 792

39 La.Ann. 896

BOARD OF SCHOOL DIRECTORS PARISH OF LAFAYETTE v. J. N. JUDICE, ET ALS

No. 1302

Supreme Court of Louisiana

July 1, 1887

APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeBaillon, J.

R. C Smedes and C. D. Caffery, for Plaintiffs and Appellees.

M. E Girard, for Defendants and Appellants.

OPINION

TODD J.

This is a suit by the plaintiff board against John N. Judice, as treasurer of the school funds of said parish and the sureties on his official bond for $ 2640, the amount for which the said Judice is charged with being a defaulter.

Judice made no defense and no appearance.

The sureties, besides the general issue in their answer, set up special defenses, as follows:

1st Said Judice never was Parish Treasurer; that he did not qualify as such in 1885, not having taken the oath required by law.

2d. The document upon which the plaintiffs rely is not a bond legal in form or substance, or in any way binding on defendants, having none of the requirements of such documents to make it binding -- that it is not completed.

3d. It is not attested or authenticated by two witnesses and the Recorder -- it is not recorded in a separate book kept for that purpose to operate a mortgage upon all the estate of the principal.

4th. It is not accepted by the Parish Board of School Directors and Recorder of the parish, nor has a copy thereof been sent to the Superintendent of Education and State Treasurer.

5th. That the Board failed to adjust his accounts in proper time, (annually at least), and thus through their laches allowed him to become and remain a defaulter.

6th. That a parish treasurer is elected for one year only, and at the end of that or any time, he is ineligible to the same or any other office unless he has duly and regularly obtained a discharge for any amount of public moneys with which he may been entrusted in that or any other capacity. Defendants also specially allege that in August, 1885, Judice was not eligible to any office of honor, profit or trust, as he had not obtained a discharge for the public moneys entrusted to him.

There was judgment against the defendants, and the sureties, Hazard Easton and Louis G. Breaux, have appealed.

There is no dispute as to the amount of Judice's defalcation. It is charged and admitted to be $ 2641 72.

We will now proceed to consider seriatim the special defenses set forth:

I.

This relates to the defense that the sureties are not bound because Judice never qualified as treasurer by taking the required oath, and whether he took the oath is a disputed fact. It is not necessary to determine it, since it is well settled that the sureties on the bond of an officer acknowledge that he is such officer de facto, and are not permitted to deny the capacity of their principal thus recognized. Police Jury vs. Howet, 2 L. 47; Duncan vs. State, 7 Ann. 378; State vs. Blohm, 26 Ann. 538.

The same reasoning and authorities will apply to the contention that the sureties are not bound because Judice was not eligible to the office of treasurer by reason of his having previously filled positions of public trust and been custodian of public moneys, and failing to produce his quietus on account of such previous employments before his appointment as treasurer, in the instance before us. See also State vs. Hayes, 7 Ann. 118; State vs. Securities of Breed, 10 Ann. 492; State vs. Dunn, 11 Ann. 549.

II.

As to the defects in the bond: It is not authenticated by two witnesses and Recorder, and not recorded in...