Scott v. Caldwell, for Use and Benefit of Bay County

• Decision Date: 01 October 1948
• Citation: 160 Fla. 861,37 So.2d 85
• Parties: SCOTT et al. v. CALDWELL, Governor, for Use and Benefit of BAY COUNTY.
• Court: Florida Supreme Court

37 So.2d 85

160 Fla. 861

SCOTT et al. v. CALDWELL, Governor, for Use and Benefit of BAY COUNTY.

Florida Supreme Court

October 1, 1948

Rehearing Denied Oct. 25, 1948.

Appeal from Circuit Court, Bay County; Ira A. Hutchison judge.

J. M & H. P. Sapp, of Panama City, for appellants.

James N Daniel and L. D. McRae, both of Chipley, for appellee.

CHAPMAN, Justice.

Millard F Caldwell, as Governor of Florida, for the use and benefit of Bay County, Florida, filed a bill of complaint in equity against Ezella Scott, the legal representative of John Scott deceased, who, prior to his death, held the office of Sheriff of Bay County, and Continental Casualty Company, a bondsman of the deceased. The bill of complaint alleged that the deceased, as Sheriff of Bay County, was short in his accounts and had failed to pay over to Bay County certain sums of money received by him as Sheriff as required by law.

The State Auditing Department, it was alleged, audited the office of Sheriff of Bay County during the year 1945, covering a period of time beginning August 1, 1943, and ending January 1, 1945, and certain official transactions from January 1, 1945, to April 25, 1945. A certified copy of the Audit Report No. 2738 as made by W. R. England, Assistant State Auditor, and filed with the State Auditor, was attached to the bill of complaint. The report contains itemized statements of the accounts of the late John Scott, as Sheriff of Bay County, and shows the sum of $23,183.02 due by John Scott at the time of his death to the County of Bay.

It was further alleged that the accounts of the said John Scott, reflecting his indebtedness to Bay County, are composed of numerous items and involve extensive and complicated accounts, and a great number of transactions, among them being approximately six hundred bond estreatures and for money collected by him on approximately one hundred fines in criminal cases. The deceased failed to keep any record of income and income receipts were established by records outside of his office and other outside sources; all cash bonds were not entered on the bond register of the Sheriff's office; for many of the cash bonds no duplicate receipts could be located; that it was the lawful duty of Scott, as Sheriff, to render an accounting of the administration of his office, and likewise his legal representative failed to render an accounting of the affairs of the office as Sheriff of Bay County.

The plaintiff prayed for an accounting of the money received and disbursed by John Scott as Sheriff of Bay County, Florida, and an accounting of the money due said County by John Scott at the time he ceased to be Sheriff of said county and at the time of his death; that a court of equity hear evidence on the many claims involved in favor of Bay County against the estate of John Scott, deceased, and that a judgment be entered against Ezella Scott, as administratrix of the estate of John Scott, deceased, for such amount, with interest thereon, and against the deceased's surety, Continental Casualty Company.

The defendants moved the court to dismiss the bill of complaint on grounds (a) there was no equity in the bill; (b) the allegations were vague and indefinite and failed to state grounds for equitable relief; (c) it affirmatively appeared that the plaintiff had a full and adequate remedy at law; (d) a commingling of funds or any common property of the parties was not alleged; (e) fiduciary relations were not shown or alleged. The motion to dismiss by an order of the lower court was denied. This order was reviewed here by interlocutory certiorari under Rule 34 and by this Court denied on July 12, 1946.

The defendants answered the bill of complaint and either admitted or denied paragraphs and pertinent allegations thereof. They admitted that the administratrix had failed to render an accounting of the administration of the affairs of the office and were without knowledge as to whether certain allegations in the bill of complaint were true or false and demanded strict proof thereof. They denied a fiduciary relationship now exists or has ever existed between the defendants or either of them and Bay County. They were not in possession of the records of the Sheriff's office of Bay County as kept by John Scott and have no knowledge as to the manner or method of keeping the said official records during the period John Scott occupied the office of Sheriff of Bay County.

W. R. England testified for the plaintiff below to the effect that he has been an Assistant State Auditor and had been employed in such capacity continuously since 1933 and his duties were to check and audit County and State officials of the State of Florida. He was a licensed Public Accountant from 1931 to 1933 and at the present time is a certified Public Accountant. England examined copy of Report No. 2738, the number given it by the State Auditing Department, and after an examination stated that he made up the accounts and records of John Scott as Sheriff of Bay County, Florida, from August 1, 1943, and ending January 1, 1945, and the report was dated June 1, 1945. The witness testified that he began the audit on March 20, 1945, and completed it on June 1, 1945, and actually worked on the assignment a period of fifty-nine days. In making the audit he referred to and used the same records as made by the Sheriff's office. He checked the records of cases in the County Judge's office and conviction records as kept in the Clerk's office.

Counsel for plaintiff below offered in evidence the certified copy of the report of the audit, which was identified as Plaintiff's Exhibit No. 1. It was offered in evidence to establish the amount due by John Scott to Bay County, Florida, at the time of his death. Objections on various grounds were made to its introduction by the plaintiff below and the objections were sustained by the Special Master and counsel for plaintiff filed several exceptions to the report as made by the Special Master. The Chancellor on final hearing sustained plaintiff's exceptions to the Special Master's report and admitted into evidence a copy of the auditor's report and entered a final decree for plaintiff below in the sum of $25,911.67, and defendants appealed.

Counsel for appellants contend (1) that a court of equity is without jurisdiction to entertain a suit for accounting, as was done in the case at bar; (2) that it has not been alleged, proven or established that a fiduciary relation existed between the parties; (3) that the court below committed reversible error in receiving into evidence, over seasonable objections of the defendant below, a certified copy of the audit identified as Plaintiff's Exhibit No. 1; (4) that the court erred by its order denying the defendants' motion to strike paragraph 6 of the bill of complaint. Counsel for appellee contend that the sufficiency of the bill of complaint was fully sustained and the law of the case established when this Court on July 12, 1946, denied the petition for a writ of interlocutory certiorari under Rule 34.

Arguendo, let us concede that, in sustaining the bill of complaint on the former appeal against an attack on motion to dismiss for want of equity, the bill contained equity. We then turn to the question: Has a court of equity jurisdiction to entertain a suit for accounting as was held in the court below? The record discloses two items alone--first, some 600 bond estreatures and, second, 100 fines, and the proceeds thereof paid into the Sheriff's office. Counsel for appellants would have the State in the case at bar institute suits at law to recover the 700 contested items, and have a jury decide questions of fact incident thereto. Our...