Fid. & Deposit Co. Of Md. v. Smith, (No. 16958.)

• Citation: 134 S.E. 801,35 Ga.App. 744
• Decision Date: 20 September 1926
• Docket Number: (No. 16958.)
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND. v. SMITH.
• Court: United States Court of Appeals (Georgia)

35 Ga.App. 744

134 S.E. 801

FIDELITY & DEPOSIT CO. OF MARYLAND.

v.SMITH.

(No. 16958.)

Court of Appeals of Georgia,

Division No. 2.

Sept. 20, 1926.

(Syllabus 5y the Court.)

Error from City Court of Nashville; E. D. Rivers, Judge pro hac.

Suit by J. C. Smith against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff, and defendant brings error. Reversed.

Little, Powell, Smith & Goldstein, of Atlanta, for plaintiff in error.

Jeff S. Story and Elsie Higgs Griner, both of Nashville, for defendant in error.

BELL, J. J. C. Smith brought suit against the surety on the bond of S. B. Griner as tax collector of Berrien county. Griner was not a party to the suit, the petition alleging that he had removed to another state. A general demurrer to the action was overruled, and the defendant excepted. The petition made the following case: Griner was tax collector of Berrien county in the early part of 1922, and the Fidelity & Deposit Company of Maryland was surety on his bond. The tax collector issued a fi. fa., purporting to be for taxes due by J. C. Smith, and delivered it to his deputy, J. H. Giddens. No taxes were due by Smith, and at his instance the enforcement of the fi. fa. was enjoined by the superior court. Notwithstanding the injunction, Giddens proceeded to the plaintiff's office, and, "armed with said fi. fa. * * * and without advertising, and without bringing said property to the courthouse door, and in direct disobedience to said injunction heretofore referred to, and under the instructions of S. B. Griner and contrary to law, * * * sold to the highest bidder for cash (there being only two or three present at the sale) all of the property located in the office [of] your petitioner." The plaintiff's property which was thus made way with was itemized and alleged to be of the value of $1,152.80. Included in the sale was the plaintiff's filing cabinets, containing valuable papers belonging to the plaintiff and various clients, and "said J. Howell Giddens, as deputy tax collector, acting under the advice and instructions of S. B. Griner, tax collector, took all of said property and scattered them to the four winds of the world, " to plaintiff's damage in the further sum of $1,000. The acts on the part of Griner "personally and by and through his deputy, " Giddens, constituted a breach of the bond and en-titled the plaintiff to recover the full sum of $2,152.80, besides interest, etc.

In counties having a population of 125, 000 or more the tax collectors are ex officio sheriffs to the extent of having authority to make levies and sales under tax fi. fas. Civil Code 1910, § 1225, as amended August 14, 1915, p. 11. Where an act of the Legislature is effective only in counties of a certain population, the courts will take judicial cognizance that a given county has or has not the required population, as the case may be, for the purpose of determining whether the act is applicable therein. Lead-better v. Price, 102 Or. 159, 199 P. 633, 202 P. 216, 17 A. L R. 218; Standard Oil Co. v. City of Kearney, 106 Neb. 558, 184 N. W. 109, 18 A. L. R. 95; 15 R. C. L. 1129. Berrien county has a population of less than 125, 000. The tax collector, then, had no authority to levy the fi. fa. Hill v. Ga. State Building Ass'n., 120 Ga. 472 (1), 47 S. E. 897; Laurens County v. Citizens' Bank of Valdosta, 9 Ga. App. 662 (1), 72 S. E. 67. The plaintiff in error says, furthermore, that the tax collector of Berrien county had no authority to appoint a deputy. Civil Code 1910, §§ 225, 294, 1227. We think it is unnecessary to decide this question. In our view of the case we may assume that Giddens was a duly and lawfully appointed deputy. Under this assumption, the action on the principal officer's bond will stand as if the acts complained of had been committed by that officer himself. Civil Code 1910, § 295. Giddens, therefore, may be eliminated.

We now have the following case: The tax collector had in hand a fi. fa. issued by him purporting to be for taxes due; however, the taxes were not due, and the enforcement of the fi. fa. had been enjoined. The tax collector, nevertheless, armed himself with the fi. fa. and proceeded thereunder to seize and sell the property of the alleged taxpayer, without advertising the sale and without carrying the property to the courthouse door or otherwise complying with the forms of the law, to the owner's damage. Do such acts constitute a breach of the bond?

To render sureties on official bonds liable for misconduct of the principal, the acts complained of must be done either by virtue of his office or under color of his office. In some jurisdictions the courts draw a distinction between acts virtute officii and those done colore officii, and hold the sureties liable for acts of the former class only. It is a broader rule which fixes liability for acts of the latter class, since it is cumulative and adds a liability to that which exists under the other doctrine. Where sureties are liable for wrongful acts of the latter class, they are liable for wrongful acts of both classes. They cannot be held liable anywhere if the acts complained of belong to neither class.

The rule of liability for wrongful acts com mitted by virtue of office is of common-law origin and does not embrace acts merely under color of office. Coleman v. Roberts, 113 Ala. 323, 21 So. 449, 36 L. R. A. 84, 59 Am. St Rep. 111. But the common law has been changed in some way in Georgia so as to render sureties on official bonds liable for (a) "any wrongful act committed [by the principal] under color of his office, " as well as for (b) his failure to perform or * * * the improper or neglectful performance of those duties imposed by law." Civil Code 1910, § 291 (4), The portion of this section which we have designated as (b) indicates the causes for which sureties would have been liable at common law, while that which is quoted as (a) represents the extent by which the rule has been enlarged in this state.

Undoubtedly the acts complained of in this case could not have been done by virtue of office, because the tax collector had no power to make a levy and...