Finley v. City of Tucson

• Decision Date: 28 March 1900
• Docket Number: Civil 721
• Citation: 60 P. 872,7 Ariz. 108
• Parties: SAMUEL W. FINLEY et al., Defendants and Appellants, v. CITY OF TUCSON, Plaintiff and Appellee
• Court: Arizona Supreme Court

60 P. 872

7 Ariz. 108

SAMUEL W. FINLEY et al., Defendants and Appellants, v. CITY OF TUCSON, Plaintiff and Appellee

Civil No. 721

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

Barnes & Martin, for Appellants.

Judgment on pleadings is only proper where the pleadings are insufficient to sustain a different judgment, notwithstanding any evidence which might be produced. 11 Ency. of Plead. &amp Prac., p. 1030.

This is not a case where judgment on the pleadings could be properly granted, for the reason that, while the defendants admit the execution of the bond sued on, they allege in their sworn answer that the bond was exacted by the plaintiff from defendant without any legal authority, and was not executed and delivered for any good and valid consideration. The effect of such allegation put in issue the proper execution and delivery of the bond, denied the consideration, and denied the validity of the bond. Prost v. More, 40 Cal. 347.

The answer alleges that the defendants had tendered to the plaintiff the only damage or emoluments which had been lost to defendant, -- to wit, the difference between one hundred dollars per month paid to Finley and eighty-five dollars per month paid to Oakes. This was a denial that defendants were liable under the bond for more than fifteen dollars per month -- a denial that they owed the city $1,249.27 as alleged.

The effect of such answer was to set up new matter constituting a defense, and it was held by this court in Miles v McCallan, 1 Ariz. 491, 3 P. 610, that "Judgment on the pleadings cannot be rendered when the answer under oath denies any of the material allegations of the complaint or sets up new matter constituting a defense."

The breach of a bond conditioned for the performance of a specified act does not give the obligee an absolute right to recover the amount named; when such a breach occurs he should sue for and recover only the damages actually sustained. Ripley v. Eady, 106 Ga. 422, 32 S.E. 343.

This bond was exacted of Finley by the city, and there is no statutory authority for such a bond. Section 1750 is to be strictly construed, and applies wholly to county offices says bond shall run to the county, be approved by the chairman of the board of supervisors, and shall be conditioned that the principal will refund to the treasurer of the county any salary he may have received. People v Cabanne, 20 Cal. 525.

"Where statute requires a bond to be payable to the state, and it is taken payable to the governor it is void." Lawton v. State, 5 Tex. 270.

"Where a bond is taken by an officer or court acting simply under statutory authority the instrument must be authorized by statute or it will be void." Byers v. State, 20 Ind. 47.

"A bond executed in the course of a judicial proceeding is not valid as a statutory or common-law obligation where the court or officer who took it had no authority to take it." Couchman v. Lisle, 17 Ky. Law Rep. 1295, 33 S.W. 940.

C. W. Wright, and Rochester Ford, for Appellee.

Bonds intended to be taken in compliance with statutes, although not done so, if entered into voluntarily and founded upon a valid consideration, and do not violate public policy or contravene any statute, will be enforced by common-law remedies. Palmer v. Vance, 13 Cal. 553; Munter v. Reese, 61 Ala. 395; Bunneman v. Wagner, 16 Or. 433, 8 Am. St. Rep. 306, 18 P. 842.

Although a constable's bond is given to the treasurer of a city instead of to the city, as required by statute, yet being voluntarily executed, and there being nothing in the condition contrary to law, it is a valid bond at common law. Farr v. Rouillard, 172 Mass. 303, 52 N.E. 443.

OPINION

STREET, C.J.

-- In December, 1896, an election was held in the city of Tucson for the election of city officers. George W. Oakes and the appellant Samuel W. Finley were candidates for the office of city marshal. Upon the return and canvass of the votes cast at said election it was decided that Oakes had received the largest number of votes cast, and a certificate of election was given him therefor. The appellant Samuel W. Finley contested the election in the district court in and for Pima County, and, as the result of such contest, obtained a judgment and decree from said court declaring and adjudging him to be entitled to hold the office of city marshal, and that Oakes be ousted therefrom. Oakes appealed from said judgment to the supreme court of the territory, and obtained a reversal of the judgment of the district court, and a judgment that the district court enter a judgment for the contestee, Oakes. Oakes v. Finley, 5 Ariz. 390, 53 P. 173. Pending the appeal, Finley was desirous of drawing the salary attached to the office of city marshal, and gave a bond to the city of Tucson, appellee, in the sum of twenty-four hundred dollars, with the other appellants William H. Barnes, James Finley, and Rosario Brena, as sureties. The condition of the bond is as follows, to wit: "The condition of the above obligation is such that whereas, on the ninth day of January, 1897, in the district court of the first judicial district of the territory of Arizona in and for Pima County, in an action pending therein wherein Samuel W. Finley is contestant and George W. Oakes is contestee, the said Finley was adjudged to be the duly elected city marshal of the said city of Tucson; and whereas, the said George W. Oakes has taken an appeal from said judgment to the supreme court of the territory of Arizona; and whereas, the said Samuel W. Finley is desirous of receiving the salary for his services as such city marshal from the city of Tucson during the pendency of such appeal: Now, therefore, if, on appeal, or any new trial of said cause, he, the said Samuel W. Finley, be adjudged or decreed to be not entitled to such office, and if he, the said Samuel W. Finley, shall refund to the treasurer of said city of Tucson...