Power County v. Fidelity & Deposit Co. of Maryland

• Decision Date: 30 July 1927
• Docket Number: 4492
• Court: Idaho Supreme Court
• Parties: POWER COUNTY, a Municipal Corporation, Respondent, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant, C. LEE FRENCH, Respondent, and D. M. FARSON and J. H. MOSS, Intervenors and Respondents

260 P. 152

44 Idaho 609

POWER COUNTY, a Municipal Corporation, Respondent, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant, C. LEE FRENCH, Respondent, and D. M. FARSON and J. H. MOSS, Intervenors and Respondents

No. 4492

Supreme Court of Idaho

July 30, 1927

OFFICERS-CLERKS OF COURTS-JUDGMENT AGAINST SURETY ON BOND-MISAPPLICATION OF FEES-MONEYS ILLEGALLY RECEIVED-NO LIABILITY BY SURETIES.

1. Under C. S., secs. 431 and 432, one procuring judgment against surety on an official bond of clerk of district court, for full amount of his demand, need not prorate with those who have not even filed suit to recover on bond, though penalty is less than total amount of claims.

2. Surety on bond of clerk of district court as ex-officio auditor and recorder held not liable for misapplication of moneys received by him from sheriff and deputy sheriff in violation of C. S., secs. 3564, 3694, requiring that all such fees should be turned into county treasury, accompanied by certificate of auditor, since there was no authority for sheriff to pay auditor, or for auditor to receive such amounts, and surety did not contract to become liable therefor.

3. Sureties on official bond are not liable for moneys not legally received by officers as part of duties of office.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Ralph W. Adair, Judge.

Action on official bond. Judgment for plaintiff and intervenors. Affirmed in part, reversed in part.

Judgment affirmed in part and reversed and remanded in part with directions. Costs to appellant.

Frank T. Wyman, for Appellant.

Where the evidence shows the existence of a fund against which several persons have equally just claims but without any preference, the court may not properly award to anyone an amount in excess of his ratable share.

Sureties upon an official bond are not liable for moneys not legally received by the officer as a part of the duties of his office. (11 C. J. 899; 29 Cyc. 1455; Brandt on Suretyship, 3d ed., secs. 627-629; San Luis Obispo County v Farnum, 108 Cal. 562, 41 P. 445; People v Shearer, 143 Cal. 66, 76 P. 813; Wilson v. State, 67 Kan. 44, 72 P. 517; People v. Cobb, 10 Colo. App. 478, 51 P. 523; City of Butte v. Bennetts, 51 Mont. 27, Ann. Cas. 1918C, 1019, 149 P. 92; People v. Hilton, 36 F. 172; State v. Griffith, 74 Ohio St. 80, 6 Ann. Cas. 917, 77 N.E. 686; Feller v. Gates, 40 Ore. 543, 91 Am. St. 492, 67 P. 416, 56 L. R. A. 630; Clark v. Logan Co., 138 Ky. 676, 128 S.W. 1079; District of Columbia v. Petty, 229 U.S. 593, 33 S.Ct. 881, 57 L.Ed. 1343; State v. Reichard, 59 Ind.App. 338, 109 N.E. 438; Fowler v. Decatur Co., 168 Iowa 722, 150 N.W. 1061; Hawkins v. Thomas, 3 Ind.App. 399, 29 N.E. 157; Curry v. Wright, 86 Tenn. 636, 8 S.W. 593; Southwestern Surety Ins. Co. v. Neal, 81 Okla. 194, 197 P. 439; Schmitt v. Drouet, 42 La. Ann. 1064, 8 So. 396; State v. White, 152 Mo. 416, 53 S.W. 1064; City of Whiteboro v. Diamond (Tex. Civ. App.), 75 S.W. 540; Milburn-Stoddard Co. v. Stickney, 14 N.D. 282, 103 N.W. 752; State v. Flynn, 161 Ind. 554, 69 N.E. 159; People v. Toomey, 122 Ill. 308, 13 N.E. 521; State v. Enslow, 41 W.Va. 744, 24 S.E. 679; State v. Norwood, 12 Md. 177; Alcorn v. State, 57 Miss. 273; Ward v. Stahl, 81 N.Y. 406; Syme v. Bunting, 91 N.C. 48.)

R. S. Anderson and Bissell & Bird, for Respondent Power County.

Where the sheriff and his deputy, in reporting the fees of the sheriff's office to the county commissioners, turned the money and his report over to the county auditor, in the presence of the county commissioners, the auditor being, by law, clerk of the board of county commissioners, for the commissioners to approve the report and the amount of money turned over, and for the auditor to attach his certificate provided for in C. S., sec. 3564, and pay the money to the county treasurer, appellant asks this court whether the said auditor received the money by virtue of his office. The county treasurer could not receive the money, except with the auditor's certificate and the auditor could not make the certificate until the commissioners approved the report and the amount of the fees turned over. The commissioners had before them the report and the money and did approve the report and direct the auditor, their clerk, to make his certificate and transmit the money, etc.

Our statute is so plain in this respect that we see little purpose in going outside for authorities. The money was received by virtue of his office, for it reached him for an official purpose and in the due course of county business. (Silver Bow County v. Davies, 40 Mont. 418, 107 P. 81. See, also: Fees collected from other officers (5 N.J.L. 603); proceeds of boards received from predecessor (70 N.C. 295); taxes collected, lawful amount (79 N.C. 263).)

"The condition of an official bond must be that the principal will well, truly and faithfully perform all official duties required of him by law and also all such additional duties as may be thereafter imposed upon him by any law of this state." (C. S., sec. 424.)

The bond, of course, cannot be held to limit the liability of the surety strictly to money received by virtue of his office, but the bond must be given its full statutory force and effect and be held to indemnify the county against loss by reason of any breach of official duty committed by the principal.

After the enactment of the general law requiring bonds and prescribing the form passed by the legislature at its 1887 session, the legislature of the state of Idaho in 1899 enacted a further law imposing duties and liabilities upon county officers. (C. S., sec. 3694.)

Spencer L. Baird, for Respondent-Intervenors.

The fund held by the surety company is to secure payment of adjudicated claims against the defaulting clerk, and if insufficient in amount to satisfy all claims, should be paid in satisfaction of those first reduced to judgment. (Dallas v. Chaloner's Exrs., 3 Dall. 501, 1 L.Ed. 696; Lea v. Yard (Hazelhurst v. Dallas), 4 Dall. 95, 1 L.Ed. 756; United States v. Abeel, 174 F. 12; 98 C. C. A. 50; State v. Fidelity & Deposit Co. of Maryland, 91 W.Va. 191, 112 S.E. 319; State ex rel. Courtney v. Callaway, 208 Mo.App. 447, 237 S.W. 173; Burdin v. White's Admx., 188 Ky. 10, 220 S.W. 750; Southwestern Surety Ins. Co. v. Neal, 81 Okla. 194, 197 P. 439; City of Grand Rapids v. Krakowski, 207 Mich. 483, 174 N.W. 201; People v. McGrath, 279 Ill. 550, 117 N.E. 74; reversing order, 204 Ill.App. 169; Howard v. United States, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed. 754; McKean v. Shannon, 1 Binn. (Pa.) 370; Christman v. Commonwealth, 17 Serg. & R. (Pa.) 381.)

Maurice M. Myers, for Respondent C. Lee French, files no brief.

BRINCK, Commissioner. Varian, Johnson, CC., Wm. E. Lee, C. J., Budge, Givens and T. Bailey Lee, JJ., concurring.

OPINION

BRINCK, Commissioner.--

The appellant, Fidelity & Deposit Company of Maryland, was the surety on the official bond of C. Lee French as the clerk of the district court of Power county, for the term beginning in January, 1919, and was also the surety upon the bond of said French for said term, as ex-officio auditor and recorder, and ex-officio clerk of the board of county commissioners of said county. Each bond ran to the state of Idaho, and was conditioned, among other things, that French should well, truly and faithfully perform all the duties imposed upon him by virtue of his said offices required of him by law, and should pay over in accordance with the requirements of the statutes of the state of Idaho all moneys that might come into his hands by virtue of his said offices. After the expiration of his term of office, the plaintiff, Power county, brought action against French and his surety, for moneys not paid over by him, the complaint setting out four causes of action, the first and second being based upon the bond given by French as clerk, and the third and fourth being based upon his bond as ex-officio auditor and recorder and clerk of the board of county commissioners. The facts were stipulated. As to the first cause of action, it was stipulated that French failed to account for, or turn over to his successor in office, fees which had been collected by him as such clerk, in the sum of $ 1,926.30. The second cause of action relates to moneys which had been paid to the clerk of the court under order of court in certain actions tried therein, some of which payments had been paid to French's predecessor, and turned over to French, and some of which had been paid in during his term of office. The first item consisted of moneys which had been realized from a sale on foreclosure of a trust deed of property in the case of Security Title & Trust Co. v. Western Water Co., Ltd.; the said proceeds having been paid into court to be paid out to the bondholders pro rata at the rate of $ 269.93 on each bond. Of this fund it was stipulated that French failed to account for or turn over to his successor, the sum of $ 4,048.95. One D. M. Farson, the holder of four of the bonds, intervened, and prayed judgment against the appellant for the amount to which he was entitled under the bonds held by him. The second item under the second cause of action relates to a fund of $ 400, which, pursuant to order of the court in an action theretofore pending, had been deposited with the clerk to be held pending a further order of the court, and which had thereafter been ordered paid to one J. H. Moss. French failed to pay over said sum either to Moss or to the county, and Moss intervened, claiming judgment against appellant therefor. The third item under the second cause of action consisted of $ 37.60, which, under order of the court, had been directed paid to the clerk, for the benefit of one Ray, and which French...