Richland County v. Owens

• Decision Date: 26 August 1912
• Parties: RICHLAND COUNTY v. OWENS et al.
• Court: South Carolina Supreme Court

75 S.E. 549

92 S.C. 329

RICHLAND COUNTY v. OWENS et al.

Supreme Court of South Carolina

August 26, 1912

Appeal from Common Pleas Circuit Court of Richland County; Robt. Aldrich, Judge.

"To be officially reported."

Action by the County of Richland against Samuel H. Owens and another. Judgment for plaintiff. Defendants appeal. Affirmed.

See also, 86 S.C. 571, 68 S.E. 753.

Green & Green, R. H. Welch, and W. H. Townsend, all of Columbia, for appellants. W. Hampton Cobb, Thomas & Lumpkin, and D. W Robinson, all of Columbia, for respondent.

HYDRICK J.

The complaint sets up three causes of action on three official bonds, given by the defendant Owens, as supervisor of Richland county, for three consecutive terms of office, of two years each. The condition of each bond is that Owens, as supervisor, shall well and truly perform the duties of his office, as required by law.

Copies of the bonds, certified by the clerk of the court and register of mesne conveyances, in whose office the originals had been recorded, as required by law, and also the originals, which were produced by the state treasurer, who was the legal custodian of them, were properly admitted in evidence. Section 595, vol. 1, Code 1902, provides that copies of official bonds "so certified shall be good and sufficient evidence in all suits to be instituted in any court of this state." The surety company contends that the bonds could not have been legally recorded, and therefore that the certificate of their record was illegal, because the bonds were executed by the surety company outside the limits of the state, and proof of their execution by the corporation was taken before a foreign notary, whose official seal was not accompanied by a certificate of a clerk of a court of record of the county in which the affidavit was taken as to his official character, as required by section 948, vol. 1 Code 1902. Evidently this appellant overlooked the fact that section 948 was amended (26 Stat. 83) so as to dispense with the necessity of such a certificate, and so as to make the official seal of a foreign notary, affixed within the state of his appointment, a sufficient authentication of his signature, residence, and official character; and the act was made to apply to and validate the probate of all instruments previously executed according to its provisions, whether the same were then recorded or not. Section 2897, vol. 1, Code 1902, as amended (23 Stat. 1073), affords authority for the introduction of the originals, the respondent having given the notice required. Under that section, the production of the original bonds was prima facie evidence of their execution.

The complaint alleges numerous breaches of the condition of each of the bonds, resulting in loss to the county; but it will be necessary to mention only those upon which the court directed a verdict for the plaintiff. They were in substance, as follows: (1) That Owens, as supervisor, issued warrants, in payment of claims against the county for labor and materials, which were not itemized and verified as required by law, and without proper scrutiny thereof. (2) That he issued warrants in payment of an extra salary or allowance to C. M. Douglas, as clerk of the county board of commissioners, in violation of law. (3) That he signed warrants in blank, and left them with C. M. Douglas, who filled them up and issued them in payment of false, fictitious, and fraudulent claims, having forged thereon the signatures of the necessary number of the members of the county board of commissioners.

Each of these breaches was proved by undisputed evidence. It cannot be denied that, in the particulars alleged, the supervisor violated the positive mandate of the statutes. The amount of the claims so paid was proved by production of the warrants and the claims. Under the first cause of action, they amounted to $1,592.32; under the second, to $6,793.33; and, under the third, to $6,044.36. But as the recovery against the surety could not exceed the penalty of each bond, which was only $5,000, the court directed the verdict for only $11,592.32, being the full amount proved under the first cause of action and $5,000 under each of the others.

In this connection, we dispose of the exceptions which complain of two slight errors in adding into the amounts, found to have been improperly paid out under the second and third causes of action, the sums of $34.80 and $30, respectively. It will be seen, from the figures above stated, that these errors were harmless, because the county was entitled to recover, under each of those causes of action, a much greater amount than the items in question in excess of the amount for which the verdict was directed, which was only $5,000 in each case.

Section 806, vol. 1, Code 1902, is in part as follows: "No accounts shall be audited and ordered to be paid by the county board of commissioners for any labor performed, fees, services, disbursements, or any other matter, unless it shall be made out in items and accompanied with an affidavit attached thereto, and made by the officer or person presenting or claiming the same, that the said items are correct, and that the labor, fees, disbursements, services or other matters charged therein have been in fact done, made, rendered or are due, and that no part of the same has been paid or satisfied."

Section 814, vol. 1, Code 1902, is as follows: "No member of the county board of commissioners shall vote for an extra allowance to any person who is paid by salary, nor shall the treasurer of said county knowingly pay to any such person any extra allowance." By section 763 the salary of the clerk of the county board of commissioners was fixed at $500.

Sections 806 and 814, above quoted, are mandatory and the supervisor was a member of the county board of commissioners, and its chairman. Section 758, vol. 1, Code 1902. ...