National Sur. Corp. v. Sholtz for Use and Benefit of Tyler

• Decision Date: 28 February 1936
• Citation: 166 So. 213,123 Fla. 110
• Parties: NATIONAL SURETY CORPORATION v. SHOLTZ, Governor, for Use and Benefit of TYLER.
• Court: Florida Supreme Court

166 So. 213

123 Fla. 110

NATIONAL SURETY CORPORATION v. SHOLTZ, Governor, for Use and Benefit of TYLER.

Florida Supreme Court

February 28, 1936

En Banc.

Error to Circuit Court, St. Lucie County; Elwyn Thomas, Judge.

Action by the Honorable David Sholtz, successor to the Honorable Doyle E. Carlton, as Governor of Florida, for the use and benefit of Frank M. Tyler, against the National Surety Corporation. Judgment for plaintiff, and defendant brings error. On motion to dismiss as frivolous.

Motion to dismiss denied, and judgment affirmed.

COUNSEL Fee & Liddon, of Fort Pierce, for plaintiff in error.

C. O Andrews, of Orlando, and F. L. Hemmings, of Fort Pierce, for defendant in error.

OPINION

PER CURIAM.

The law of this case has been definitely and finally settled in the earlier decisions of this court, which hold that, inasmuch as Frank M. Tyler, former tax collector of St. Lucie county, was succeeded in office by Orris Nobles, the incumbent tax collector, and retired from his office without having received his maximum compensation as tax collector as allowed him by section 970, C.G.L., as amended by chapter 15798, Acts of 1931, Ex.Sess., § 1 and that inasmuch as the clerk of the circuit court of St. Lucie county had collected and paid over to Nobles, Tyler's successor virtute officii, the sum of $1,336.49, which represented the statutory 5 per cent commissions on tax sales that had been earned by Tyler while in office for making up delinquent lists and conducting the tax relief against the dead, but granted the 1932, therefore Nobles was in law deemed decree relating to the deed involved is the him, for the use and benefit of his predecessor, Tyler, and was subject to judgment for that sum in Tyler's behalf in the suit brought against him to enforce such payment. See Lee v Smith 111 Fla. 91, 149 So. 67; Tyler v. Thomas, 114 Fla. 368, 153 So. 848; Tyler v. Nobles, 117 Fla 328, 161 So. 283.

The law is clear that Orris Nobles, as Tyler's successor in office, received the commissions in question from the clerk of the circuit court by virtue and under color of his office as tax collector of St. Lucie county. It is also clear that Nobles was under a duty as such tax collector to faithfully account for and pay the same over to Tyler upon demand, because such moneys had come into Nobles' possession or custody solely by virtue of his office and in no other capacity.

Where a public officer assumes to collect, and does collect, sums of money under color of his office, it is immaterial whether he was in fact authorized to collect the money or not. He is under a duty imposed upon him by law to account for and pay over moneys collected by him colore officii and, if he fails so to do,...