Page v. Sawyer
| Decision Date | 28 April 1943 |
| Docket Number | 453. |
| Parties | PAGE v. SAWYER et al. |
| Court | North Carolina Supreme Court |
This was a motion for judgment under C.S. § 356, against William H. Sawyer, former clerk of the Superior Court of Wake County and the surety on his official bond, for the recovery of a fund of $766.98 in the hands of said clerk which belonged to the relator's intestate, Joyce Corinne Godwin, and which the said clerk has declined to pay on demand.
The respondents contended that this fund had been paid out by William H. Sawyer while clerk under an order of the Resident Judge of the Superior Court.
The case was heard on agreed facts which may be briefly summarized as follows: In 1937 a fund now amounting to $766.98 was placed in the hands of respondent Sawyer, then clerk of the Superior Court, as such clerk, belonging to Joyce Corinne Godwin, a minor and mental incompetent without guardian. Joyce Corinne Godwin was domiciled and resident in Wake County, and so continued until her death in 1942. On February 6, 1941, a person calling himself D.O. Jackson, and claiming to have been appointed guardian of Joyce Corinne Godwin by the Judge of Probate of Wayne County, Georgia presented a petition verified by himself, alleging the child was a resident of Wayne County, Georgia, and praying that this fund be turned over to him as such guardian.
The so-called Jackson exhibited what purported to be copies of his appointment as guardian by the Ordinary of Wayne County Georgia, and of his oath and bond, with United States Fidelity & Guaranty Company as surety, authenticated by what appeared to be the impression seal of the Court of Ordinary of Wayne County, Georgia. Respondent Sawyer filed the petition and supporting papers as a special proceeding, and, since the fund in question was in his hands, he referred the petition to the Resident Judge of the Superior Court. Thereupon, the Judge signed an order directing Sawyer as clerk of the Superior Court to pay over to D.O. Jackson the amount of the fund belonging to Joyce Corinne Godwin, less commissions and costs, and the respondent Sawyer paid over to the person calling himself D.O. Jackson $766.98 representing the entire estate belonging to said minor. All this occurred on the same day. It was admitted that the papers filed by Jackson were forgeries, and that subsequently at July Term, 1941, Harold J. Rundt, alias D.O. Jackson, was convicted and sentenced to State's Prison on the charge of obtaining this money by false pretense. No part of the fund was recovered.
Upon these facts the court below was of opinion that plaintiff relator was entitled to recover of the respondents the amount of the fund, and so adjudged.
Respondents appealed.
Bunn & Arendell, of Raleigh, for relator-appellee.
Smith, Leach & Anderson, of Raleigh, for respondents-appellants.
The respondents challenge the correctness of the judgment below on the facts agreed, and contend that no liability should attach to the clerk of the Superior Court, or to the surety on his bond, on account of payment to an improper person of funds in the hands of the clerk belonging to an infant when the payment has been directed by an order of the Judge of the Superior Court.
On first thought, this contention on the part of the respondents would seem to be based on a reasonable construction of the law governing the clerk's relation to the court, but upon a closer examination of the duties and obligations of the clerk with respect to the funds of infants placed in his hands by virtue of his office, a different principle is found, which we think controlling on the admitted facts appearing in the case at bar.
For the determination of the rights of the parties on the facts presented we find no precedent in the decisions of this court, and none elsewhere has been called to our attention. However, it is firmly established in this jurisdiction that the liability of the clerk of the Superior Court for the safety of funds of infants placed in his hands by virtue of his office is that of an insurer. Thacker v. Fidelity & Deposit Co., 216 N.C. 135, 4 S.E.2d 324; Pasquotank Co. v. American Surety Co., 201 N.C. 325, 160 S.E. 176; Williams v. Hooks, 199 N.C. 489, 154 S.E. 828; New York Indemnity Co. v. Corporation Commission, 197 N.C. 562, 150 S.E. 16; Gilmore v. Walker, 195 N.C. 460, 142 S.E. 579, 59 A.L.R. 53; Marshall v. Kemp, 190 N.C. 491, 130 S.E. 193; Smith v. Patton, 131 N.C. 396, 42 S.E. 849, 92 Am.St.Rep. 783; Presson v. Boone, 108 N.C. 78, 12 S.E. 897; Havens v. Lathene, 75 N.C. 505; Board Commissioners of Bladen County v. Clarke, 73 N.C. 255; 46 C.J. 1039; 43 Am.Jur. 113.
The obligation of a clerk with respect to the...
To continue reading
Request your trial