Hazelet v. Holt County

• Decision Date: 03 June 1897
• Docket Number: 8977
• Citation: 71 N.W. 717,51 Neb. 716
• Parties: GEORGE C. HAZELET ET AL. v. HOLT COUNTY
• Court: Nebraska Supreme Court

71 N.W. 717

51 Neb. 716

GEORGE C. HAZELET ET AL. v. HOLT COUNTY

No. 8977

Supreme Court of Nebraska

June 3, 1897

ERROR from the district court of Holt county. Tried below before KINKAID, J. Affirmed.

AFFIRMED.

J. C Crawford and H. M. Uttley, for plaintiffs in error.

H. E Murphy, W. R. Butler, and M. F. Harrington, contra.

OPINION

HARRISON, J.

At the general election held in Holt county in 1889 George C. Hazelet was elected county clerk of said county, and subsequently there was executed and delivered by him as principal and the other plaintiffs in error as sureties a bond conditioned for his faithful performance of the duties of the office, which bond was approved. Hazelet, on the day of January, 1890, designated by law, assumed the duties of the office, and continued in the performance thereof until the close of the term, January 6, 1892. The present action was commenced by the county of Holt to recover certain sums alleged to have accrued in its favor by reason of breaches of the covenants or conditions of said bond. The county obtained a judgment in the trial in the district court, and Hazelet and his bondsmen have prosecuted error proceedings to this court.

The first point presented in the argument is that there is no sufficient statement of a cause of action in the petition; hence the judgment based thereon is not sustained and must be set aside. In this connection we are directed to the following portion of an allegation of the petition, viz.: "On the 23d day of December, 1889, the defendant George C. Hazelet, as principal, and the defendants Joseph S. Bartley, Milton Doolittle, Arthur C. Crossman, Howard Miller, C. N. Forney, Jacob Smith, Seth Woods, Arthur L. Morse, J. H. Colburn, Clarence H. Walrath, John Forrest, Charles L. Sturdevant, W. H. Hendrix, C. A. Jarvis, J. C. Purnell, and H. L. Putnam, as sureties, made and delivered to plaintiff an obligation in writing." It is claimed that it is not pleaded therein that the bond was executed by plaintiffs in error, that the word "made" has no such significance as to warrant its use in expressing the fact of the execution of the bond, and that it did not express it; therefore, the execution of the instrument was not stated, and the petition was defective for the lack of such statement. The use of the word "made" to set forth the execution of the bond is in exact compliance with the wording of a form for petition in an action on official bonds given in Maxwell, Pleading & Practice, page 202, form No. 123,--from which the form of the petition in the case at bar was probably obtained, the pleader having apparently closely followed the plan and arrangement of such form. It is said in Black's Law Dictionary that "execute" means "To make; as to execute a deed, which includes signing, sealing, and delivery." "Make: To execute with the requisite formalities; as to make a bill, note, will, deed, etc." (Webster's International Dictionary; Brown v. Westerfield, 47 Neb. 399, 66 N.W. 439.) The criticism is one to which the petition is not open. It must therefore be overruled.

A copy of the bond was given in the body of the petition, and evidently relied on by the pleader as a statement of certain of the facts necessary to show a cause of action. This, it is argued, was insufficient. It is also urged that breaches of the conditions of the bond were not pleaded. The petition did contain a statement that the principal therein had been elected to the office, for the faithful performance of the duties of which the bond in question was conditioned; also that the principal and sureties executed and delivered the bond. The instrument, as copied in the petition, was to be construed as a part of it, and the conditions as therein contained were sufficient allegations of the covenants and obligations of the parties principal and sureties. In the opinion in the case of Clement v. Hughes, 13 Ky. L. Rep. 352, 17 S.W. 285, an action on a guardian's bond, there is the following statement: "In this instance the petition avers that the guardian executed bond with the appellants as his sureties, and then the bond is copied as a part of the petition in haec verba. This was sufficient. Where the writing is copied, the covenant of the party, of course, appears, and it supplies the otherwise necessary averment as to what the obligor covenanted to do." "It is sufficient to set forth the very words of an instrument; and if it be so pleaded the court will judge of their legal effect." (Elliott v. Roche, 64 Minn. 482, 67 N.W. 539; Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Budd v. Kramer, 14 Kan. 101; Maxwell, Pleading & Practice, 89; 1 Chitty, Pleading, 306; Pefley v. Johnson, 30 Neb. 529, 46 N.W. 710.) There were allegations in the petition of the non-performance by Hazelet of acts which the conditions of the bond and the law required him as county clerk to do. These were sufficient to show breaches of the conditions of the bond. We conclude that the petition, liberally construed, as the Code requires, was not defective in the particulars designated and argued in the brief for plaintiffs in error.

The allegations of the petition as to which the jury awarded the county a recovery were that Hazelet had received for making road books and assessors' books, during the year 1890, $ 100 for preparing each set of books, and like sums for the performance of similar duties during the year 1891; that during the year 1890 he had received a fee of $ 2 for each of 179 certificates of incumbrances on property furnished to the sheriff in actions of foreclosure, preparatory to appraisements and sales, and in 1891 he had received $ 2 for each of 312 of such certificates; that he had not entered either of the sums received for making road and assessors' books on his fee book as fees earned and collected, and of the amounts collected for the certificates of incumbrances he had entered in the fee book but twenty-five cents of the sum collected for preparing and furnishing each one. By section 42 of chapter 28 of the Compiled Statutes it is prescribed that every county clerk whose fees shall exceed $ 1,500 per annum shall pay the excess into the county treasury. In section 43 of the same chapter it is made obligatory on certain officers, including county clerks, to make quarterly reports under oath to the county board, showing the different items of fees received from whom, at what time, and for what service, the amount received since the last prior report, and the whole sum received for the current year; and section 44 of the chapter requires each of the officers referred to in the act to keep a fee book, in which must be entered each and every item of fees collected, showing in separate columns the name of the party from whom received, the amount received, the time, and for what service the fee was charged. "There is no room for doubt, under the sections above referred to, that it is the duty of each county clerk to keep a fee book, and to enter therein every item of fees received or earned by him for official services, and to make an accurate report of the same to the county board. The statute in that respect is mandatory. It does not exempt any officer governed by its provisions from reporting all the legal fees by him collected, and the courts are powerless to relieve him from performing that duty." (State v. Hazelet, 41 Neb. 257, 59 N.W. 891.) The case from the opinion in which we have just quoted was one in which an application was made for a writ of mandamus to compel the respondent, who is a plaintiff in error in the case at bar, to enter in his fee book fees collected by him as county clerk of Holt county for preparing and furnishing to the sheriff certificates of incumbrances in appraisals of lands to be sold under executions and orders of sale, and it was determined in that case that the clerk must enter such fees...