Fidelity & Casualty Co. v. State

• Decision Date: 20 March 1939
• Docket Number: No. 4-5330.,4-5330.
• Citation: 126 S.W.2d 293
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK et al. v. STATE, for Use of COLUMBIA COUNTY.
• Court: Arkansas Supreme Court

126 S.W.2d 293

FIDELITY & CASUALTY CO. OF NEW YORK et al. v. STATE, for Use of COLUMBIA COUNTY.

No. 4-5330.

Supreme Court of Arkansas.

March 20, 1939.

Appeal from Columbia Chancery Court; Walker Smith, Chancellor.

Suit by the State, on the relation of the Prosecuting Attorney of Columbia County, against the Fidelity & Casualty Company of New York and Lula McAlister Gillum, Treasurer of Columbia County, for moneys due from such treasurer. From a judgment for relator, the Fidelity & Casualty Company of New York appeals.

Reversed and remanded with directions.

Buzbee, Harrison, Buzbee & Wright, of Little Rock, for appellant.

Oren Harris, of El Dorado, and Edwin B. Keith, of Magnolia, for appellee.

HUMPHREYS, Justice.

On August 27, 1937, the State of Arkansas, on the relation of the Prosecuting Attorney of Columbia County, filed the following complaint in the Chancery Court of Columbia County to recover $4,960.45 from Lula McAlister Gillum, Treasurer of Columbia County for the term from January 1, 1933 to December 31, 1934 and from the Fidelity & Casualty Company of New York, which was surety upon her official bond. The complaint is in words and figures as follows:

"Comes the plaintiff, State of Arkansas, for the use and benefit of Columbia County, Arkansas, on the relation of Oren Harris, as Prosecuting Attorney, and for its cause of action against the defendants, Lula McAlister Gillum and the Fidelity & Casualty Company of New York, a corporation, alleges:

"That at the General Election held in Arkansas, in the Year 1932, for the election of State and County Officers for Arkansas, to serve for the term of two years, beginning January 1st, 1933, and ending December 31st, 1934, the said Lula McAlister Gillum was elected to serve as treasurer of Columbia County, Arkansas; said Lula McAlister Gillum thereupon qualified as such County Treasurer, took the oath of office prescribed by law for such Treasurer, and served as County Treasurer of Columbia County, Arkansas, continuously for the term of two years, to-wit: Beginning January 1st, 1933, and ending December 31st, 1934; and was the regular elected, qualified, commissioned and acting County Treasurer in and for Columbia County, Arkansas, at the time of the commission of the acts complained herein.

"That the defendant, The Fidelity & Casualty Company of New York, is, and was at all times mentioned hereinafter, a corporation, authorized to do, and doing business in the State of Arkansas.

"The said defendant, Lula McAlister Gillum as such County Treasurer, duly executed her official bond, as Treasurer on the 30th day of December, 1932, with the Fidelity & Casualty Company of New York, as her surety thereon, in the sum of $22,500 for the term aforesaid, that is, for the years of 1933 and 1934, and that said bond was duly examined and approved on December 30th, 1932, by Honorable Aubrey Rowe, as County Judge, and was duly filed in the Columbia County Circuit Court, on the 6th day of January, 1933, and affirmed and was filed for record and recorded in Record Book 3, at page 155, of the Records of Columbia County, Arkansas; that among other things it was provided in said bond that if the said Treasurer, Lula McAlister Gillum, shall well, truly, and faithfully discharge and perform the duties of her office, and at the expiration of her term of office, shall render unto her successor in office, a correct account of all sums of money, books, goods, valuables and other property as it comes into her custody, as such treasurer of said Columbia County, Arkansas, and shall pay and deliver unto her successor in office or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables and other property, which shall be in her hands and due by her, then the above obligation shall be null and void; else the same to remain in full force and virtue; that a copy of said bond is attached hereto, marked Exhibit `A', and made a part of this complaint; that said Bond was in full force and effect and covered the period from January 1st, 1933, to December 31st, 1934, both dates inclusive.

"That for the years of 1930, 1931, 1932, and 1933, a large number of claims were presented to the County Court of Columbia County, Arkansas, for payment of obligations incurred by said county; that said claims were allowed by said Court and ordered paid. In obedience to said order of allowance, the County Clerk of Columbia County, Arkansas, drew, issued and delivered County Warrants drawn upon the County General Fund in Columbia County, Arkansas, and for the fiscal year of 1930-1931, the said Court allowed claims and the County Clerk thereof, issued warrants which were void for the reason that said order and warrants were made and issued, after the revenues of said County, chargeable to the County General Fund, had been exhausted, and said void warrants in the sum of $22.40, which were issued in the fiscal year of 1930-1931, were presented to the said Lula McAlister Gillum, as County Treasurer, in the year of 1933, and was then and there paid, cashed and redeemed by her; that void warrants in the sum of 50¢ which were issued in the fiscal year of 1930-1931, were paid, cashed and redeemed in the year of 1934, by the said Lula McAlister Gillum, as said Treasurer; that the County Court of Columbia County, Arkansas, for the year of 1931, allowed claims and the Clerk thereof, issued warrants in excess of the revenues derived from all sources for that year, which were void, and the said Lula McAlister Gillum, in the year 1933, paid, cashed and redeemed said void warrants issued in said year of 1931, in the sum of $915.19; that the said Lula McAlister Gillum, as said County Treasurer in the year of 1934, paid, cashed, and redeemed void warrants, which were issued in 1931, that were void because they exceeded the revenues from all sources of that year, in the sum of $50; that the County Court of Columbia County, Arkansas, allowed claims for the fiscal year of 1931-1932, and the County Clerk thereof issued warrants in excess of the revenues of said County from all sources for that year; and the said Lula McAlister Gillum, as said County Treasurer, in 1933, paid, cashed and redeemed said void warrants issued in the fiscal year of 1931-1932, in the sum of $2,147.90, and in the year of 1934, the said Lula McAlister Gillum, as County Treasurer, paid, cashed and redeemed void warrants issued in the fiscal year of 1931-1932, in the sum of $133.45; that the County Court of Columbia County, Arkansas, for the year of 1933, allowed claims against said County and the County Clerk thereof issued warrants thereon in excess of the revenues from all sources for that year, which were void, and the said Lula McAlister Gillum paid, cashed and redeemed said void warrants in the year of 1933, that were issued in excess of the revenues of the fiscal year of 1933, in sum of $221.80, and the said Lula McAlister Gillum, as said Treasurer of said County, in 1934, paid, cashed and redeemed said void warrants that were issued in excess of the revenues of the fiscal year of 1933, in the sum of $725.85; making a total of said void warrants paid, cashed and redeemed in the year of 1933, by the said Lula McAlister Gillum, as Treasurer of said County, in the sum of $3,307.37, and a total of said void warrants paid, cashed, and redeemed in the year of 1934, in the sum of $909.80, and a sum total of void warrants during the year of 1933, and 1934, paid, cashed and redeemed by the said Lula McAlister Gillum, to the amount of $4,217.17.

"That it became and was the duty of the said Lula McAlister Gillum, as County Treasurer, as aforesaid, to refuse to accept, pay, cash or redeem all void or invalid County warrants of the said Columbia County, Arkansas, which were presented to her as such County Treasurer, either for redemption in cash or in payment of any debt, forfeiture, penalty, tax or other obligation due the said Columbia County, Arkansas; that, notwithstanding this duty, as aforesaid, of the said Lula McAlister Gillum, as such Treasurer, she, as Treasurer of Columbia County, Arkansas, did during the term of her office, 1933-1934, accept, pay, cash and redeem void warrants in the aforesaid sum of $4,217.17, said warrants being illegal, fraudulent, invalid and absolutely void, and not a valid charge against the said Columbia County, Arkansas, and to the great damage and loss to said County in said amount; said warrants being illegal, fraudulent, invalid and absolutely void, for the reason that they exceeded the revenues of said County for the year in which they were issued.

"That this breach of duty as aforesaid, by her, the said Lula McAlister Gillum, as Treasurer, constitutes and is a breach of the conditions of her official bond, as set out above to the great damage and loss of Columbia County, Arkansas, in the amount of $4,217.17.

"That on the 5th day of April, 1933, the said Lula McAlister Gillum, as County Treasurer of Columbia County, Arkansas, filed her quarterly report for the first quarter of 1933, with the Columbia County Court of Columbia County, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit `B', and made a part of this Complaint.

"That on the 8th day of July, 1933, the said Lula McAlister Gillum, as County Treasurer of Columbia County, Arkansas, filed her quarterly report for the second quarter of 1933, with the Columbia County Court for Columbia County, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit `C', and made a part of this Complaint.

"That on the 7th day of October, 1933, the said Lula McAllister Gillum, as County Treasurer of Columbia County, Arkansas, filed her quarterly report...