Searcy v. Cullman County

• Decision Date: 13 April 1916
• Docket Number: 6 Div. 210
• Citation: 71 So. 664,196 Ala. 287
• Parties: SEARCY et al. v. CULLMAN COUNTY.
• Court: Alabama Supreme Court

71 So. 664

196 Ala. 287

SEARCY et al. v. CULLMAN COUNTY.

6 Div. 210

Supreme Court of Alabama

April 13, 1916

Appeal from Circuit Court, Cullman County; Robert C. Brickell Judge.

Suit by the County of Cullman against J.J. Searcy and others. Judgment for plaintiff, and defendants appeal. Affirmed.

George H. Parker, of Cullman, and Eyster & Eyster, of New Decatur for appellants.

A.A Griffith and F.E. St. John, both of Cullman, and Callahan & Harris, of Decatur, for appellee.

McCLELLAN J.

The county of Cullman instituted this action against the county treasurer and the sureties on his general official bond to recover a sum of money--received and afterwards misappropriated by the county treasurer--derived from the sale of county bonds authoritatively issued and sold for the purpose of affording funds wherewith to construct and maintain public roads. Code, § 158 et seq. The bond of the treasurer was incorrectly made payable to the state of Alabama, instead of to the county of Cullman; but, in view of the statutes, this error is of no importance or bearing. U.S.F. & G. Co. v. Union Trust Co., 142 Ala. 532, 38 So. 177; Barnes v. Hudman, 57 Ala. 504. The single question presented is whether the obligation assumed by the sureties on the general official bond of the county treasurer included the assurance of that official's fidelity with respect to the special fund belonging to the county and received by him subsequent to the execution of the general official bond on which this action is founded.

Section 210 of the Code provides:

"Before entering on the duties of his office he must give bond, with at least two good and sufficient sureties, in double the estimated amount of the annual revenue of the county, to be determined by the court of county commissioners, payable to the county and conditioned as prescribed by law, which bond is to be approved by the judge of probate and filed and recorded in his office; and the court of county commissioners shall require an additional bond whenever any special fund is to be received by the treasurer, and pay the premium therefor."

So far as presently important, Code, § 1500, provides:

"Every official bond is obligatory on the principal and sureties thereon--(1) For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof. (2) For the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein. (3) For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law."

Section 211 of the Code provides:

"It is the duty of the county treasurer--(1) To receive and keep the money of the county, and disburse the same according to law."

The receipt by the treasurer of the special fund here involved had the effect to impose upon that official the obligations of fidelity which the law manifestly exacted of him in respect of funds belonging to the county. Jackson County v. Derrick, 117 Ala. 348, 23 So. 193.

Sections 210 and 1500 are in pari materia, and must be construed in view of that relation. The bond, for the breach of which this action was...