Commonwealth v. Singer

• Court: Pennsylvania Superior Court
• Writing for the Court: PORTER, J.
• Citation: Commonwealth v. Singer, 31 Pa.Super. 597 (Pa. Super. Ct. 1906)
• Decision Date: 05 October 1906
• Docket Number: 69-1906
• Parties: Commonwealth to use v. Singer, Appellant

31 Pa.Super. 597

Commonwealth to use v. Singer, Appellant

No. 69-1906

Superior Court of Pennsylvania

October 5, 1906

Argued May 14, 1906

Appeal by defendants, from judgment of C.P. Armstrong Co.-1904, No 153, on verdict for plaintiff in case of Commonwealth to use of School District of Freeport Borough v. W. A. Singer, F. A Seitz and Frank Maxler.

Assumpsit on a tax collector's bond. Before Patton, P. J.

At the trial plaintiff's counsel offered in evidence the bond of W. A. Singer, with F. A. Seitz and Frank Maxler as sureties dated July 8, 1902, and approved by the court on July 9, 1902, and filed as of the same date, for the purpose of substantiating the claim of the plaintiff as against the defendants in this case, and to show their liability.

Defendants' counsel object to the offer, under the plaintiff's declaration and the pleadings in the case, for the following reasons:

1. For the reason that the obligees in the bond are the commissioners of the county of Armstrong, Pennsylvania, and so set forth in the bond.

2. It is objected to because it does not show any right of action in the commonwealth of Pennsylvania to maintain suit upon this bond offered in evidence, nor does it show any right in the use plaintiff, to wit, the school district of the borough of Freeport, to maintain this action in the present form, the present action being what is known as a proceeding on an official bond, under the act of 1836.

3. It is further objected to as incompetent and irrelevant, to show any liability on the part of the defendants in this case, either to the commonwealth of Pennsylvania, or to the use plaintiff.

The Court: The objections are overruled, the bond is received, and a bill of exceptions is sealed to the defendants.

Plaintiff's counsel reads the bond and the oath thereto, and the approval by the court thereof, to the jury.

Plaintiff's counsel offer in evidence specifically that portion of the auditors' report relative to the settlement of the school tax with W. A. Singer, collector, for the purpose of showing the balance due from the collector to the school district.

Defendants' counsel object to the offer because already offered.

Defendants' counsel now renew their former objection to the auditors' report, in relation to the school tax for the year 1902, and add the additional objection, that the plaintiff has already shown that the collector's accounts, for the year 1902, were audited at the end of the school year, to wit, June, 1903, and these auditors' reports cannot be both legally binding on the sureties in the collector's bond.

The Court: The objection is overruled, the offer admitted, and a bill of exceptions is sealed to the defendants.

Under the above offer, the auditors' settlement with W. A. Singer, collector of school taxes of Freeport borough for the year 1903, made February 23, 1904, was admitted in evidence.

The court charged as follows:

[In this case we will reserve the question, when a bond is made out as this one is, in the name of the commissioners of Armstrong county, and a suit is brought in the name of the commonwealth of Pennsylvania, at the suggestion of, and to the use of, the school district of Freeport borough, whether or not the plaintiff is entitled to recover, reserving the question of law; with the right to enter a verdict for the defendants, non obstante veredicto.]

Verdict and judgment for plaintiff for $ 1,349.19. Defendant appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions; and portion of charge as above, quoting it.

W. J. Christy, of McCain & Christy, for appellants, cited: Wampler v. Shissler, 1 W. & S. 365; Com. v. Pray, 1 Phila. 58; Genesee Paper Co. v. Bogert, 23 Pa.Super. 23.

Samuel H. McClain, with him Calvin Rayburn, George M. Hill, John M. Ralston and J. D. Daugherty, for appellee, cited: Clarke v. Potter County, 1 Pa. 159; Glover v. Wilson, 6 Pa. 290; Lehigh County v. Gossler, 24 Pa.Super. 406; Young v. Machamer, 1 Pearson, 303; Dyer v. Covington Twp., 28 Pa. 186; Com. v. Dauphin County Commissioners, 3 Pa. Dist. 584; McClure v. Com., 80 Pa. 167; McMicken v. Com., 58 Pa. 213; Com. v. Allen, 2 Pa.Super. 175; Berks County v. Levan, 86 Pa. 360; Little v. Fairchild, 195 Pa. 614; McGonnigle v. McGonnigle, 5 Pa.Super. 168; Com. v. Gruver, 13 Pa.Super. 553; Com. v. Scanlan, 202 Pa. 250; Shartzer v. School District, 90 Pa. 192; Luzerne County v. Rhoads, 1 Kulp, 437; Bank v. Schuylkill County, 190 Pa. 188; Com. v. Price, 15 Pa.Super. 342; Athens Car & Coach Co. v. Elsbree, 19 Pa.Super. 618; Schofield v. Lafferty, 17 Pa.Super. 8; Fisher v. Life Association, 188 Pa. 1; Eckert v. Schoch, 155 Pa. 530; Chapin v. Cambria Iron Co., 145 Pa. 478; Commonwealth v. Patterson, 13 Pa.Super. 136.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

PORTER, J.

The defendant, W. A. Singer, having been duly elected tax collector for the borough of Freeport, in the county of Armstrong, duly presented his official bond, with the other defendants as sureties, for the year 1902 to the court of quarter sessions for approval on July 9, 1902, as required by the Act of June 6, 1893, P. L. 333. The bond was dated July 8, 1902, and was approved by the court of quarter sessions of Armstrong county on July 9, 1902, as the official bond of W A. Singer, as tax collector for the borough of Freeport, and was on said day filed, together with the oath of office of said Singer, as tax collector, in the office of the clerk of said court, as required by the Act of June 25, 1885, P. L. 187. The bond was conditioned in the exact language required by the act of June 25, 1885, and was in the exact form prescribed by that statute, except that instead of the commonwealth of Pennsylvania being made the obligee therein, as provided by the statute, " the Commissioners of Armstrong County, Pennsylvania," without naming them, were the obligees. The collector failed to account according to law for the school taxes for the school district of the borough of Freeport collected by him, and the school district authorities brought this action against him and his sureties upon the above-mentioned bond. The school taxes in question were within the express condition of the bond, and the only ground upon which the defendants allege exemption from liability is that the commonwealth of Pennsylvania should have been named as obligee in the bond, instead of the commissioners of Armstrong county. The liability of sureties in official bonds is not generally measured by the law requiring the surety, but by that imposing the duties on the officer; when the bond is given as an official bond and the condition imposes no liability not authorized by law, the mere fact that the obligee named is not the one provided by the statute does not vitiate the bond, nor relieve the officer or his sureties from liability: Dyer v. Covington Township, 28 Pa. 186. The tax collector and his sureties having executed the bond in question as his official bond, and the same having been approved by the proper court as such, and the collector having received the school taxes which were clearly within the express condition of the bond, the officer...