Boyd v. State ex rel. Board of Commissioners of County of Jay

• Decision Date: 07 April 1908
• Docket Number: 6,063
• Citation: 84 N.E. 350,42 Ind.App. 243
• Parties: BOYD ET AL. v. STATE, EX REL. BOARD OF COMMISSIONERS OF THE COUNTY OF JAY
• Court: Indiana Appellate Court

84 N.E. 350

42 Ind.App. 243

BOYD ET AL. v. STATE, EX REL. BOARD OF COMMISSIONERS OF THE COUNTY OF JAY

No. 6,063

Court of Appeals of Indiana

April 7, 1908

Rehearing denied July 1, 1908.

From Jay Circuit Court; John F. LaFollette, Judge.

Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Jay, against Truman O. Boyd and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Frank B. Jaqua, for appellants.

Smith & Moran and Richard H. Hartford, for appellee.

RABB J. Roby, C. J., not participating.

OPINION

RABB, J.

This action was brought by the appellee against the appellants upon the official bond of the appellant Boyd, as county auditor of Jay county. There was an answer of general denial, the cause was submitted to the court for trial, special findings made and conclusions of law thereon stated, to which exceptions were reserved, and a judgment rendered on the special findings against the appellants for $ 939.19. The appellants' motion for a new trial was overruled. The questions presented by the record here arise upon the exceptions to the conclusions of law, and the action of the court in overruling the motion for a new trial.

The breach of the bond assigned in the complaint was as follows: "That during the term of office for which said Truman O. Boyd was elected and qualified, he collected and received as such auditor, and by virtue of his office, large sums of money for which he did not account to the Board of Commissioners of the County of Jay, or to any one entitled to receive the same, but retained said money, which was in excess of the salary allowed him by law, and converted it to his own use, specifically setting forth a long list of sums collected from various sources--among other items, one reading as follows: Received for making assessors' books $ 547, amounting in the aggregate to $ 4,696.04; that during the time he was serving as such auditor he paid into the county treasury the sum of $ 2,532.35, leaving a balance due the county of $ 2,163.69; * * * that the term of office of said Truman O. Boyd expired on January 1, 1904, and that he did not account or turn over to his successor in office, or to any one entitled to receive the same, the amounts set forth, but converted said amounts to his own use; that there is now due and owing from the defendants to the plaintiff the sum of $ 2,300, together with interest."

The first six of the special findings set forth the election and qualification of appellant Boyd as auditor, and the execution of the bond sued on. The seventh, finds that during the time Boyd was acting as auditor he received out of the county treasurer's office, for making assessors' books, $ 137. By the eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and sixteenth, the court found that said Boyd, while acting as auditor, received fees from various sources, amounting in the aggregate to $ 261.80, which he failed to pay into the county treasury, as required by law. By the fifteenth, the court found that the appellant Boyd, while acting as auditor of said county, collected and received for services as clerk of the board of turnpike directors of Jay county, during his term of office, the sum of $ 434.92, upon warrants drawn upon the county treasury, payable to himself, under orders making allowances to him for said services by the board of county commissioners.

The reasons assigned for a new trial and pressed upon our consideration are: (1) That the finding is not supported by the evidence; (2) the amount of recovery assessed is excessive.

It is contended by appellants that the court erred in its conclusions of law upon the facts stated, for the reason that there is no finding that demand was made upon the appellant Boyd for the sums of money found to be due to the county from him, before suit, and that such fact was alleged in the complaint and was essential to plaintiff's recovery. This contention cannot be sustained, since there is a finding that the appellant collected fees which he failed to account for and pay over to the county, as required by law. We think no demand was necessary to plaintiff's right to maintain this action. The law fixes a certain time when such moneys shall be paid by the officer collecting the same, and designates the person to whom they shall be paid.

It is said by the Supreme Court, in the case of Moore v. State, ex rel. (1876), 55 Ind. 360: "In the collection of these several funds by the clerk of a court, when the time at which he should pay them over, and the person or officer to whom they should be paid are fixed by law, and therefore certain, we think, upon failure so to pay them, he becomes at once liable, without demand and refusal before suit is brought; and against an action founded merely upon his breach of duty in not so paying over such funds, he may plead the statute of limitations." To the same effect see, Foster v. State, ex rel. (1899), 22 Ind.App. 471, 53 N.E. 1095; King v. Downey (1900), 24 Ind.App. 262, 56 N.E. 680.

The sureties upon appellant Boyd's bond, so far as this question is concerned, stand exactly in the shoes of their principal, and they are entitled to make no defense that he could not urge. Demand, if necessary, would not be required to be made upon them, but upon their principal, for whose acts they stood surety, and in a case in which demand was necessary before an action could be maintained, a demand made upon the principal would be sufficient. We hold that the law fixing the time at which payment should be made into the county treasury of fees collected by the auditor is a demand upon that officer to make payment at the time named and to the person named. In a case where a county officer issues to himself warrants upon which to procure money from the county treasury, to which he is not entitled, though such warrants may have been issued pursuant to allowances illegally made by the board of county commissioners, the money thus withdrawn from the treasury becomes due and payable to the county the moment it is received, and without previous demand. It is the wrongful taking...