McGuire v. Williams

• Decision Date: 28 November 1898
• Citation: 31 S.E. 627,123 N.C. 349
• Parties: McGUIRE, County Treasurer, v. WILLIAMS, Sheriff, et al.
• Court: North Carolina Supreme Court

31 S.E. 627

123 N.C. 349

McGUIRE, County Treasurer, v. WILLIAMS, Sheriff, et al.

Supreme Court of North Carolina

November 28, 1898

Appeal from superior court, Davie county; McIver, Judge.

Action by James McGuire, county treasurer, against W. F. Williams sheriff, and others. From a judgment for plaintiff against certain defendants, they appeal. Reversed in part.

A sheriff being required to settle the taxes by a certain day demand is not necessary before action on his bond.

T. B Bailey and Jones & Patterson, for appellants.

E. L Gaither, for appellee.

DOUGLAS J.

This is an action brought by the county treasurer on the bonds of the sheriff to recover the sum of $3,515.75, balance of unpaid taxes, with the statutory penalty of 2 per cent. per month. Only two of the sheriff's bonds are really involved, one for the collection and settlement of the school and poll tax, and the other for the general public taxes. The defendants W. A. Bailey, B. R. Bailey, and C. G. Bailey are sureties on both bonds, while the defendant W. R. Ellis is surety only on the first. The case was referred to a referee, to whose report exceptions were filed by all parties, but those of the defendants Bailey and Ellis are the only ones that need be considered. These exceptions are as follows:

"W. F. Williams, W. A. Bailey, C. G. Bailey, and B. R. Bailey file the following exceptions to the report of G. M. Bingham, referee: (1) Because the levy of 22 cents on the $100 worth of property for special or railroad tax was illegal and void, and without authority of law, for reason that the Acts of the Legislature of 1879 (chapter 113) do not appear from the evidence to have been ratified by a vote of the people of said county, as required by said act and the constitution of the state. (2) Because no act of the legislature authorizing said special tax levy was ever submitted to, or ratified by, a vote of the people of Davie county. (3) Because referee charged defendants with $3,504.72 merely because the levy was made; there being no evidence nor finding by the referee that the sheriff actually collected any part of the special tax fund sued for. (4) If the court should construe the referee's report to mean that sheriff did collect a part of the special tax, then defendants except because the referee found that, at the time of the alleged settlements and payments of the sheriff to the treasurer, the sheriff, having mixed the funds collected, used $3,097.42 2/3 of the special and ordinary fund, and paid the same on the school fund, and these defendants, sureties on said special and ordinary tax bonds, claim that they are entitled to be exonerated to the amount of the special fund so used by the sheriff in the payment of the school tax. (5) Because the referee did not charge the sureties on the school bond with $3,097.42 2/3 the amount of special or railroad and ordinary tax money used in the settling of school funds. (6) Defendants further except to the report because the referee ruled that the defendants W. A. Bailey, C. G. Bailey, and B. R. Bailey were primarily liable for the whole amount of alleged default, to wit, for $3,504.72. (7) Because the referee charged said W. A. Bailey, B. R. Bailey, and C. G. Bailey with the sum of $1,365.18, it being 2 per cent. per month interest, as a penalty for the alleged default."

"The defendant W. R. Ellis excepts to the report of the referee, for that: (1) The referee having found as a fact that all taxes levied by the county during the term of defendant Williams' office were duly collected and properly disbursed, save and except for the year 1896, and that which was collected and not disbursed was not of the school fund, but the general tax fund; and having further found as a fact the defendant W. R. Ellis had signed, during the last term of defendant Williams' office, only on the bond dated December 3, 1894, designated as 'Exhibit No. 8,' and known as 'School Tax Bond'; and having further found as a fact that the school tax levied for the year 1896 was $4,646.14, and that the defendant W. F. Williams had paid to plaintiff on school tax for year 1896 the sum of $4,646.14, and that the defendant did not sign the general tax bond of the defendant W. F. Williams,--it was error on the part of the referee to hold, as a matter of law, that the defendant W. R. Ellis was secondarily liable for any part of the defalcation; that said referee should have held, from the facts found, that the defendants W. A. Bailey, B. R. Bailey, and C. G. Bailey, who signed the general tax bond dated December 3, 1894, are along liable for the defalcation, there being no default for any part of the school fund for the year 1896, or any year during the term of office of the defendant W. F. Williams; that the referee did not have evidence upon which to support his findings as to how much of other funds was used by the sheriff in paying off to the plaintiff treasurer the amount due on school fund, and his findings as to this should not be sustained."

The defendants Bailey, who also use the name of the defendant Williams throughout, assign as error "(1) that the court committed error in the judgment rendered by overruling exceptions 1, 2, 3, 6, and 7 filed by these defendants; (2) because he rendered judgment against the defendants for any amount whatever."

The defendant Ellis assigned as error "(1) that the court committed...