National Sur. Co. v. Pinal County

Decision Date17 June 1926
Docket NumberCivil 2468
Citation30 Ariz. 383,247 P. 135
PartiesNATIONAL SURETY COMPANY, a Corporation, Appellant, v. COUNTY OF PINAL, STATE OF ARIZONA, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Pinal. E. L. Green, Judge.

Affirmed.

Messrs Stockton & Perry and Mr. Earl F. Drake, for Appellant.

Mr Ernest W. McFarland, County Attorney, for Appellee.

Ross J. McAlister, C. J., concurs. Lockwood, J., dissenting.

OPINION

Ross, J.

This is an action brought by the county of Pinal against the Pinal Bank & Trust Company, a designated county depositary, and against the National Surety Company, the surety on depositary's bonds, and against A. T. Hammons, superintendent of banks. The bank defaulted, and Hammons answered that he was in charge of its assets as liquidating agent, under the provisions of the Banking Code (Laws 1922, c. 31).

The case against the surety company was tried before a jury upon what, in effect, was a general denial, and at its close, upon the motion of plaintiff, the court instructed the jury to return a verdict in plaintiff's favor for $ 34,104.06, being the amount claimed in complaint, with interest.

There are two surety bonds, one dated November 21, 1918, for $ 10,000, and one December 10, 1919, for $ 30,000. The obligations of the bonds were identical and in the following words:

"Now, therefore, if the principal, the said Pinal Bank & Trust Company of Florence, Arizona, shall well, truly, and faithfully perform and discharge all duties and responsibilities now required, or that may hereafter be required of it under any law of the state of Arizona, and shall promptly pay out to the parties entitled thereto all public moneys of the county of Pinal, state of Arizona, in its hands, or that may come into its hands, upon lawful demand therefor, and shall, whenever required thereto by law or lawful demand, pay over to the treasurer of the county of Pinal, state of Arizona, for the use and benefit of the county of Pinal, state of Arizona, all public moneys, with interest at the rate prescribed by law for active and inactive depositories, computed on daily balances, then this obligation shall be void and of no effect, otherwise to be and remain in full force and effect."

The bank having closed its doors on May 11, 1923, the superintendent of banks took possession thereof. Thereafter the county treasurer of plaintiff presented claims to the superintendent of banks for $ 57,675.25, which claims were approved by the superintendent, upon which as liquidating agent he paid as dividends before suit was brought $ 4,764.63, and after suit $ 3,970.52.

The county treasurer also sold $ 17,970 worth of school district bonds that the bank had deposited with her as additional security to deposits, and credited the amount with that sum.

The surety company on this appeal admits the judgment properly went against it for the major portion of plaintiff's demand, but contends that items charged against the bank as public moneys to the amount of $ 10,846.88 were not public moneys and did not fall within the terms of its obligation as surety, and that the judgment to that extent is erroneous.

Perhaps before we enter upon a discussion of this contention we ought to notice a preliminary question raised by plaintiff as to the court's right to review the evidence on this appeal.

The motion for a new trial was not filed within ten days after the rendition of judgment as provided by statute. Paragraph 590, Civil Code 1913. This, it is asserted, was necessary to confer jurisdiction on this court to consider the sufficiency of the evidence to substantiate a verdict or judgment in an action tried before a jury -- made so by paragraph 1231, Civil Code. It may be seriously doubted if it was the intention to apply such rule when, as in this case, the verdict is directed by the court. The reason for the rule would hardly apply, since the verdict, while nominally that of the jury, is in fact the conclusion of the court. Paragraph 1231, supra, also provides that we "shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not." This is certainly broad enough to cover the court's order directing the verdict. Law v. Smith, 34 Utah 394, 98 P. 300. But aside from this question we do not think there should be any dispute as to the evidence. The whole controversy is over its legal effect. It is only necessary to consider whether the admitted and proved facts in law entitle the plaintiff to judgment for its whole claim.

The items the surety company refuses to acknowledge as covered by its bond may be best explained by stating the record evidence of them. During the months of January, February and March, 1923, there were drawn by the order of the board of supervisors of Pinal county against the treasurer of such county, to be paid out of the road district funds thereof, warrants amounting to several thousand dollars. There were no funds, or not enough funds, in the treasury to meet all of these warrants. Accordingly, when the payee or indorsee of one of these warrants would present it to the treasurer for payment, instead of indorsing thereon, "Not paid for want of funds," as the law requires (paragraph 2568, Civil Code), the treasurer would take moneys from the general funds of the county, pay the holder of warrant, and carry warrant until the end of the month as so much cash. At the end of each month she would take all the warrants, so taken in during the current month, to the Pinal Bank & Trust Company, and the bank would give her credit for such warrants as so much cash.

During the times above stated warrants were handled in the above manner to the amount of $ 13,957.60. When money was collected or paid into the county treasury to the credit of the road district fund the treasurer would use it to replace the general fund by taking up such road warrants. On April 2, 1923, she paid to the bank, by check on said road district fund, $ 2,007.40, and on April 3d $ 1,103.32, and to that extent reduced such road district warrants, leaving with the bank $ 10,846.88 of such warrants. This constitutes the item in dispute. It is not questioned that the bank's assets were enlarged to the full extent of such warrants. It appears that some time prior to May 11, 1923, the date the bank closed its doors, it sold and transferred to other banks or financial institutions all of the road district warrants that had been left with it by the county treasurer and for which it had been given credit, and that thereafter these warrants were paid by the county out of the road district funds.

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3 cases
  • McClinton v. Rice, 5663
    • United States
    • Arizona Supreme Court
    • December 21, 1953
    ...the appellate court. * * *' Appellant relies in part upon the reasoning best illustrated by the decision in National Surety Co. v. County of Pinal, 30 Ariz. 383, 247 P. 135, 136, decided in 1926. Here this court 'The motion for a new trial was not filed within 10 days after the rendition of......
  • Kerby v. State ex rel. Frohmiller
    • United States
    • Arizona Supreme Court
    • April 5, 1945
    ...660, 106 P. 1040, 26 L. R. A. (N. S.) 865, the following pertaining to the liability of the surety on the bond of a state treasurer [30 Ariz. 383, 247 P. 137]: . . The bond was given to protect the state against official delinquency. The extent of the obligation of the surety is written in ......
  • Iftiger Family Trust v. Sweet
    • United States
    • Arizona Court of Appeals
    • October 20, 2016
    ...a post-trial motion for a new trial on damages is not required to preserve the issue of sufficiency of evidence. See Nat'l Sur. Co. v. Pinal County, 30 Ariz. 383, 386 (1926) (finding predecessor statute to A.R.S. § 12-2102(c) (2016) does not require a motion for new trial to review sufficie......

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