Bradford v. State

• Decision Date: 20 December 1917
• Docket Number: 8 Div. 73
• Citation: 77 So. 696,201 Ala. 170
• Parties: BRADFORD et al. v. STATE.
• Court: Alabama Supreme Court

77 So. 696

201 Ala. 170

BRADFORD et al. v. STATE.

8 Div. 73

Supreme Court of Alabama

December 20, 1917

Rehearing Denied Jan. 24. 1918

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Bill in equity by the Attorney General, in behalf of the State against W.E. Bradford and others. From an order overruling demurrer to the bill, defendants appeal. Affirmed.

Goodhue & Brindley, of Gadsden, for appellants.

W.L Martin, Atty. Gen., and L.E. Brown, Asst. Atty. Gen., for the State.

MAYFIELD J.

This is a bill filed by the Attorney General of the state, in the name of the state, against the sureties on the official bond of the county treasurer of public school funds for Marshall county, to recover public school funds which came into the hands of such treasurer, and were lost by the fault of the officer in depositing the funds in an insolvent bank. The bill also seeks an equitable attachment in aid of the bill. The respondents demurred to the bill, assigning many grounds of demurrer. The demurrer was overruled, and the respondent sureties prosecute this appeal.

It is first insisted that the bill should have been filed in the name of the county of Marshall, and not in the name of the state of Alabama, because the funds lost were the property of the county, and not that of the state. Second, that the county treasurer, or his personal representative, is a necessary party to the suit, in that sections 2444 et seq. of the Code do not apply, except where the action is against the defaulting officer or his personal representative. Third that the averments of the bill do not make a case within the operation of sections 2443 et seq. of the Code, and that without the aid of these Code provisions the bill would contain no equity. Fourth, that as the defaulting officer was not authorized to receive any funds except county funds, if any state funds came into his possession it was not by virtue of his office, and that for such state funds, or the loss thereof by the county treasurer, the sureties on such officer's official bond were not liable.

Counsel for appellants cite and rely upon the cases of Morrow v. Wood, 56 Ala. 1, and Jackson County v. Derrick, 117 Ala. 348, 23 So. 193, in support of the first proposition, that the suit should be by the county of Marshall and not by the state of Alabama. These cases are not applicable for the reason that we had no statutes at all corresponding with sections 2443 et seq. of the Code when the first case was decided, and none providing for cases like this, as to county funds, when the last-mentioned case was decided. In neither of those cases was the suit brought by, or in the name of, the state. The Code now expressly authorizes suits like this to be brought by the state. See chapter 48, art. 1, §§...