Koonce v. Commissioners of Jones County

• Decision Date: 24 March 1890
• Parties: KOONCE v. COMMISSIONERS OF JONES COUNTY.
• Court: North Carolina Supreme Court

10 S.E. 1038

106 N.C. 192

KOONCE v. COMMISSIONERS OF JONES COUNTY.

Supreme Court of North Carolina

March 24, 1890

This was a civil action tried at the fall term, 1889, of the superior court of Jones county, before BOYKIN, Judge. The judge (BOYKIN) intimated that upon the pleadings, as amended in accordance with the suggestions of SHIPP, J., made at a previous term, the plaintiff could not recover; whereupon the plaintiff submitted to judgment of nonsuit, and appealed. The pleadings were as follows:

Complaint as amended after the ruling of Judge SHIPP:

"The plaintiff complains and alleges:

(1) That he was appointed and duly qualified and inducted into the office of sheriff of Jones county on the 7th day of February, 1881; that since which time, to wit, the 7th day of February, 1881, by regular election to said office, he has been the duly-qualified and acting sheriff of said county of Jones, and still fills said office, giving all bonds required thereby, and rendering in due course and account of the funds coming into his hands, and the obligations and duties of the said office of sheriff.

"(2) That, before this plaintiff's first qualification and entering on the duties of said office of sheriff as aforesaid, the office of treasurer of the county of Jones under the general provisions of the statute, had been abolished, and by virtue of the act of assembly (Code, § 770) this plaintiff, as sheriff, has ex officio been the treasurer of the county of Jones, and during said time has performed all the duties and obligations of treasurer aforesaid.

"(3) That since his qualification as treasurer aforesaid, and holding said office, the tax-list for the years 1881, 1882 1883, 1884, 1885, have been duly placed in his hands, and he has held and disbursed the funds arising therefrom as treasurer aforesaid, for the first four years above enumerated, and has regularly accounted therefor to the proper authorities, except for said list of 1885, the funds arising from which he stands ready and willing to account for.

"(4) That as treasurer ex officio of the county of Jones, he has received no compensation nor commissions for the years above mentioned, and he alleges that he is entitled to the compensation of treasurer provided in the act of assembly (Code, § 770.) as he is informed and believes.

(4 1/2) That plaintiff's commissions as treasurer of the county of Jones aforesaid, during the years 1881, 1882 1883, 1884, 1885, are reasonably worth the sum of fifteen hundred and eighty-five dollars and four cents.

"(5) The tax-lists, including county and school funds which have come into the hands of plaintiff for the years above named, are as follows in amounts:

1881 ..	$ 5,780 01
1882 ....	6,581 79
1883 ...	13,642 33
1884 ....	8,914 47
1885 ....	4,721 83

--On which the commissions, as plaintiff is advised, informed, and believes, would be as follows: 1 1/2 per cent. for receipts, and 2 1/2 per cent. for disbursements, to-wit, for--

1881	1 1/2 p.c.for r'c'ts	$86 69	2 1/2 p,c, disbursem'ts	$ 144 50
1882	" " " " "	98 71	" " "	164 44
1883	" " " "	204 70	" " "	341 18
1884	" " " "	133 11	" " "	221 85
1885	" " " "	70 82	" " "	118 04

--Making a total for commissions for said years, due plaintiff, of fifteen hundred and eighty-five dollars and four cents.

"(6) That during said years the plaintiff has been allowed, as he is advised, informed, and believes, as treasurer of county board of education, the sum of two and one-half per cent. commissions which he has duly received, which list and percentage therein is as follows:

1881	tax"list	$2,866 49	2 1/2 per cent	$ 71 66
1882	" ......	3,039 34	" " " " .......	75 88
1883	" ......	4,430 85	" " " " ......	110 77
1884	" ......	3,066 70	" " " " .......	76 66
1885	" ......	2,316 82	" " " " .......	57 92

--Making total commissions as treasurer of the county board of education, as he is advised, informed, and believes, the sum of three hundred and ninety-two dollars and eighty-nine cents.

"(7) That plaintiff has demanded of the defendant board payment of the said commissions as treasurer of the county of Jones, which they refuse to allow or pay to plaintiff.

"(8) That the plaintiff presented the aforesaid claim to the defendant board of commissioners, to be audited and allowed; that the said claim, and refused to audit and allow any commissions to plaintiff.

"(9) That the defendant board stated to plaintiff, at the time of the demand aforesaid, that it would not allow the commissions aforesaid as asked for, for the reason that it was not assured of its legal liability under the statute, and proposed that plaintiff and defendant should submit the matter to the judgment of the court as to plaintiff's commissions.

"Wherefore the plaintiff prays that he may recover of the defendant board of commissioners the sum of fifteen hundred and eighty-five dollars and four cents, and the costs of this action, and that he may have such other and further relief," etc.

ANSWER.

"The defendant answers the complaint: (1) It does not deny the first, second, and third articles of the complaint. (2) It denies the fourth article of the complaint on information advice, and belief, and says that it is advised that such ex officio treasurer is entitled to such compensation, not exceeding one-half of one percent, on moneys received, and not exceeding two and a half per cent. on moneys disbursed by him, as the board of commissioners may allow, subject to the proviso in section 770 of the Code. (2 1/2) It denies the allegation of article four and a half of the complaint. (3) It denies the fifth article of the complaint, in so far as it alleges that the plaintiff is entitled to any sum of money whatever for commissions, as alleged in said article of the complaint, as it is informed, advised, and believes. (4) In answer to article six of the complaint, it says it is informed and believes that the plaintiff was allowed two and a half per cent. commissions on the amount collected for school fund, and that the same was allowed by said board of commissioners, as defendant is informed and believes, in full of compensation to said treasurer. (5) It does not deny the seventh article of the complaint. And for further answer defendant says: (1) That settlements were had of the accounts of said ex officio treasurer for the years 1881 to 1884, inclusive, as stated in article third of the complaint, and no claim was made by plaintiff for compensation as such ex officio treasurer, except the amount allowed as stated, as defendant is informed and believes. (2) That more than three years have elapsed since the cause of action for collection for years prior to year 1883, and before the commencement of this action, as appears from the summons and complaint, to which reference is made. (3) That it is advised and believes that plaintiff cannot maintain this action, because plaintiff, as such ex officio treasurer, was only entitled to such compensation (not to exceed the amounts stated...