Jackson County v. Derrick

• Citation: 117 Ala. 348,23 So. 193
• Parties: JACKSON COUNTY v. DERRICK ET AL.
• Decision Date: 02 February 1898
• Court: Supreme Court of Alabama

23 So. 193

117 Ala. 348

JACKSON COUNTY v. DERRICK ET AL.

Supreme Court of Alabama

February 2, 1898

Appeal from chancery court, Jackson county; William H. Simpson Judge.

Bill by Jackson county against L. Derrick and others. From a decree dismissing the bill, plaintiff appeals. Reversed.

The bill in this case was filed by Jackson county against the appellees, who were the administrator of one J. M. Dicus deceased, and were sureties on the successive bond of said J M. Dicus, deceased, as treasurer of the county of Jackson. The bill averred the election of Dicus as treasurer of Jackson county in the years 1888 and 1892, and that the respondents, with the exception of the administrator, were sureties on the bonds of said J. M. Dicus, which were given by him, as treasurer of said county, after his election in 1888 and 1892, respectively. That as said treasurer he had during each of his terms of office, received large amounts of money, a large portion of which constituted the fine and forfeiture fund of Jackson county. The bill then avers as follows: "Under the laws of the state, and especially an act approved March 1, 1881, it was the duty of said Dicus to pay out of the fine and forfeiture fund witness certificates issued thereon, in the order in which they were entered on a book to be made out by the clerk of the circuit court, and filed with the said treasurer. During both terms said Dicus, as treasurer, paid a large number of said certificates out of said fine and forfeiture fund, which had not been registered at all. A list of the claims so paid by him, with the amount of each, is herewith filed, and made Exhibit C hereto. Said claims were not legal claims against complainant or said fund. Complainant, after diligent effort, is unable to find all the dates of said respective payments, and cannot ascertain during which term of office they were made. Said Dicus did not enter on his books all the dates of such payments, and there is no record showing all the correct dates of the respective payments. It is true, however, that part of the claims were paid during his first term of office and part of them during his second term. The book kept by said Dicus as such treasurer, under said bonds, shows the said payments were made after April 1, 1891, and prior to March 31, 1893. Said Dicus, as treasurer, during said terms of office, paid many claims more than once, making the payments out of the said fine and forfeiture fund. The claims so paid by him amounted to more than $3,000. A list of such claims is made Exhibit D to this bill. Complainant, after diligent effort, is unable to ascertain and state all the dates of said several payments so as to show which of them were made during the second term. The said Dicus so kept his said books as treasurer as not to show all the dates of such payments. It is true, however, that part of said payments were made during his first term of office and part during his second term of office. Said payments were made between March 1, 1890, and May 31, 1893. Said payments shown by Exhibits C and D were breaches of the official bond of said Dicus as treasurer, and the sureties on said bonds are liable for the breaches of said official bonds. Said Dicus, as treasurer, never made any settlement of his official trust, and the said sums so misappropriated by the said treasurer have never been accounted for or repaid to complainant. At the time of his said second election said J. M. Dicus was seised and possessed of the following described real estate: [Here followed a description of real estate situated in Jackson county.] The said last bond given by said Dicus as treasurer is a lien on said real estate. Said real estate is now in possession of W. A. Coffet, who claims to own the same. The infant defendant, Farris Dicus, is the only heir at law of said J. M. Dicus. Said J. M. Dicus, as treasurer, during his said terms of office, overpaid many claims, making the payment out of the fine and forfeiture fund. The sums of money so overpaid by him amount to about $100, and perhaps more. A list of such claims, showing the amount overpaid on each, is made Exhibit A hereto. The book kept by the said Dicus as treasurer fails to show all the dates of said payments, and complainant is unable to ascertain which of the said payments were made during his first term of office and which during his second term, but the dates or approximate dates of said payments will appear in the further progress of this cause. Complainant alleges that the said overpayments made by the said Dicus were breaches of the official bonds of said treasurer, and that the sureties on said bonds are liable for the same. The said Dicus has never in any way accounted for or repaid to the complainant the said sums so misappropriated by him as treasurer." The relief prayed for was "that a decree of reference may be had to a register appointed by the court, and that an account be taken between the complainant and said J. M. Dicus as treasurer, and that it be ascertained what sum was due the complainant on account of said defaults during said Dicus' first term of office, and what sum was due on account of said alleged defaults during his second term of office, and that he might be charged with all sums which he had improperly paid out and expended, and that a decree be rendered for complainant for such sums, and that a lien be set and established upon the said real estate for the sum found to be due on account of defaults made during his said second term of office, and that said lands be sold for the satisfaction thereof, and that a personal decree be rendered against the sureties on his said first bond for all defaults and breaches of said bond made during his said first term of office, and that a personal decree be rendered against said sureties on said second bond for all breaches thereof and defaults made by said treasurer during his said second term of office, and that title to the said real estate at the sale thereof be devested out of said Farris Dicus and vested in the purchaser at such sale, and for all such other further, general, and different relief as the facts stated entitled it to." The defendants demurred to the bill upon the following grounds: "(1) The bill does not show the kind or character of claims against the fine and forfeiture fund which are alleged to have been illegally paid, or what the said claims were for. (2) They demur to section 6 of the bill, because said section does not show that the claims alleged to have been illegally paid were of a kind and character which the law required to be registered. (3) Said section alleged no reason why, or from what cause, the claims therein mentioned were not legal and just claims against the said fine and forfeiture fund. (4) The want of registration, as set forth in said section, does not and did not render the said claims invalid, as alleged in said section. The statute requiring claims to be registered in a book by the clerk of the circuit court of said county is merely directory, and his failure to perform said duty does not invalidate a lawful claim against the fine and forfeiture fund of said county. (5) Complainant is estopped to set up the failure of its own officer, the circuit court clerk, to perform his official duty in regard to the registration of claims against said fine and forfeiture fund as a ground or cause of their invalidity. (6) The bill does not show that said claims alleged not to have been registered were not issued to the holders for services actually performed for the complainant, such as authorized their issuance, or that they were not fully issued and signed by the proper officer, or that said holders had done anything to render said claims illegal, or that they had failed to do anything which the law required of them. (7) The defendants demur to section 8 because it does not show, and the bill does not show, that the claims against the fine and forfeiture fund of said county alleged to have been paid more than once by the said J. M. Dicus, treasurer, were paid more than once knowingly, or from any fault or neglect of the said J. M. Dicus, treasurer." The defendants moved the court to dismiss the bill for the want of equity. On the submission of the cause on the demurrers and motion the chancellor rendered a decree sustaining the motion, and dismissing the bill for the want of equity. From this decree the complainant appeals, and assigns the rendition thereof as error.

R. N. Clopton and Shelby & Pleasants, for appellant.

J. E. Brown and Martin & Bouldin, for appellees.

BRICKELL C.J.

The case is an appeal from a decree of the court of chancery sustaining demurrers, and dismissing for want of equity an original bill for relief, in which the appellant was the party complainant. The principal purpose of the bill is to compel the sureties on successive bonds of a deceased county treasurer to an accounting of the fine and forfeiture fund the principal had received, and to the payment of such parts thereof as he had misappropriated; the misappropriation consisting in the application of the fund to the payment of claims which were not legally chargeable upon it, and in the payment more than once, and in the overpayment, of other claims which, in their nature and character, were chargeable upon and payable from the fund. The argument chiefly pressed by the counsel for the appellees in support of the decree dismissing the bill for want of equity rests upon the proposition that a county has not, in and to the fine and forfeiture fund, such right and interest as entitles it to sue a county treasurer for its misappropriation; that the right of suit or of action resides exclusively in the state or in claimants of the fund to whose use the statutes appropriate it, and who may...