Pima County v. Snyder

• Decision Date: 09 March 1896
• Docket Number: Civil 502
• Parties: PIMA COUNTY, Plaintiff and Appellant, v. MANLEY S. SNYDER et al., Defendants and Appellees
• Court: Arizona Supreme Court

44 P. 297

5 Ariz. 45

PIMA COUNTY, Plaintiff and Appellant, v. MANLEY S. SNYDER et al., Defendants and Appellees

Civil No. 502

Supreme Court of Arizona

March 9, 1896

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Joseph D. Bethune Judge.

Reversed.

William M. Lovell, District Attorney, for Appellant.

In the case of People v. Hartley, 21 Cal. 385, the supreme court of that state held that the sureties on a bond similar to the one here under consideration were not liable. But it must be remembered that the California statute did not contain the exception contained in paragraph 3078 of our statute.

The supreme court of Wisconsin, in the case of Douglas County v. Brandon, 79 Wis. 614, 48 N.W. 969, held that the sureties were liable on such a bond.

In the case of Cockrill v. Davie, 14 Mont. 131, 35 P. 958 the supreme court of Montana held that where the liability of a principal in a bond is fixed by contract or operation of law, his failure to sign the bond does not affect the liability of the sureties thereon. "The fact that such treasurer did not sign the bond did not exonerate the sureties on such bond from liability thereon, he having subscribed his oath of office on the back of such bond." Hall v. State, 69 Miss. 529, 13 So. 38.

Where an officer writes his name in the body of an instrument which is delivered and accepted as his official bond, the same is valid as such, notwithstanding the omission of his final signature." McLeod v. State, 69 Miss. 221, 13 So. 268.

"The failure of the principal to sign a bond, as he had promised his sureties he would do, before delivering the bond to the obligee, will not make the delivery to him a conditional one and the sureties are liable." School Trustees v. Sheik, 119 Ill. 579, 57 Am. Rep. 830, 8 N.E. 189. See, also, State v. Bowman, 10 Ohio 445, and United States, v. Line, 13 Pet. 290.

Charles Weston Wright, for Appellees.

Hawkins, J. Baker, C. J., and Rouse, J., concur.

OPINION

Hawkins, J.

Statement of facts:--

This is an action upon the official bond of Manley S. Snyder, late tax-collector of Pima County, and his sureties. Manley S. Snyder, the principal on the face of the bond, purports to be bound in the sum of twenty-five thousand dollars, and each of the ten sureties in the sum of five thousand dollars respectively. After setting out the several amounts for which the principal and sureties severally bound themselves, these words follow: "For the payment of which well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents." The conditions of the obligations are then set out in the bond in the usual form,--to the effect that the said Snyder was elected to the office of tax-collector, and that if he well and truly performed all of the official duties required by law, etc., the obligation should be void; otherwise, to remain in full force and virtue. It is alleged in the complaint that the bond was not signed by the principal, Snyder, but was duly executed by all of the sureties, and duly delivered to and approved by the chairman of the board of supervisors of Pima County, and filed in the office of the county recorder, as required by law; and it is alleged that Snyder, as such tax-collector, took and subscribed the oath of office attached to and indorsed upon said bond, and entered upon the discharge of the duties of said office, the term of which expired the thirty-first day of December, 1890. It further appears from the copy of the bond set out in the complaint that the name of the principal, "Manley S. Snyder," appears in the body of said bond at least three times. It also appears, and it is alleged as a breach of the conditions of said bond, that during his term of office he collected, as tax-collector, $ 83,399.67 taxes, and paid over to the treasurer of the county only $ 79,529.67 thereof, leaving $ 4,070 wholly unaccounted for, and which was converted unlawfully to his own use, and was not paid to the county treasurer as required of him by law. This action was brought to recover from his bondsmen that sum. The defendants, the sureties, severally demurred to the complaint, and the demurrers were sustained; and, plaintiff refusing to amend, judgment was rendered for defendants, and appellant has brought this appeal, and assigns as errors (1) that the court erred in sustaining said demurrers and rendering judgment for defendants; and (2) in holding that no recovery could be had against defendants, the sureties upon the said bond.

HAWKINS, J. (after stating facts).--About the only question in this case is, Did the court below err in holding that, because the name of Snyder was not signed to said bond the sureties were not bound thereon? Paragraph 3078 of the Revised Statutes provides that "all official bonds shall be in form joint and several, except as hereinafter provided, and payable to the territory of Arizona." Paragraph 3079 of the Revised Statutes: ". . . Such bond must be signed by the principal and at least two sureties." The penal sum of the bond in this action is twenty-five thousand dollars. Paragraph 2665 of the Revised Statutes: "Before entering upon his duties, the tax-collector shall execute to the territory of Arizona a bond in such penal sum as the board of supervisors of the county may require, with two or more sufficient sureties to be approved by said board, and conditioned that he shall faithfully perform all the duties of his office as required by law. . . ." It is presumed that under this paragraph the amount of the penalty of the bond was required at twenty-five thousand dollars. This, upon such tax-collector entering upon the duties of his office, fixed his liability; and paragraph 3081 of the Revised Statutes provides: ...