Sharp v. State ex rel. Bd. of Com'rs of Kosciusko Cnty.

• Decision Date: 27 November 1912
• Docket Number: No. 7,759.,7,759.
• Parties: SHARP et al. v. STATE ex rel. BOARD OF COM'RS OF KOSCIUSKO COUNTY.
• Court: Indiana Appellate Court

54 Ind.App. 182

99 N.E. 1072

SHARP et al.

v.STATE ex rel. BOARD OF COM'RS OF KOSCIUSKO COUNTY.

No. 7,759.¹

Appellate Court of Indiana, Division No. 1.

Nov. 27, 1912.

Appeal from Circuit Court, Kosciusko County; Harry Bernetha, Special Judge.

Action by the State of Indiana, on the relation of the Board of Commissioners of Kosciusko County, against Eff Sharp and others. From a judgment for plaintiff, defendants appeal. Affirmed.

James W. Cook and L. W. Royse, both of Warsaw, for appellants. Wood & Aiken and T. Wayne Anglin, all of Warsaw, for appellee.

HOTTEL, J.

This is an appeal from a judgment rendered against appellants in a suit on an auditor's bond given by appellant Sharp as auditor of Kosciusko county, Ind., as principal and the other appellants as sureties.

The facts of the case are, in substance, as follows: Appellant Eff Sharp was elected auditor of Kosciusko county, Ind., for a term of four years beginning January 1, 1904. On December 28, 1903, he, as principal, and the other appellants as his sureties, executed the bond upon which this action is based, conditioned that he would faithfully discharge the duties of said office during the term thereof and until his successor should be elected and qualified, and that he would account for and pay over according to law all money that might come into his hands by virtue of his office. This bond was approved by the board of commissioners of said county, and said Sharp on January 1, 1904, took his office, and held the same and discharged the duties thereof until January 1, 1908. After the expiration of Sharp's term of office, appellee filed this suit on the bond of such auditor, and in the complaint averred facts as above. A copy of the bond was made an exhibit with the complaint and five separate breaches thereof alleged. A demurrer filed to each of said breaches was sustained as to the first and third, and overruled as to the second, fourth, and fifth. An answer of general denial and payment was filed to each of these breaches, and another answer was filed to the fifth breach which is not involved in the appeal. A reply in denial to the special answers closed the issues. There was a trial by the court and a special finding of facts with conclusions of law. The finding and conclusions of law were in appellants'favor as to the second and fifth breaches, and against them as to the fourth. A motion for new trial was overruled, and judgment rendered on the finding in appellee's favor for the sum of $609.59.

The errors relied on for reversal are: (1) that the court erred in its conclusion of law No. 1 upon the special finding of facts; (2) that the court erred in overruling appellant's motion for a new trial; (3) that the judgment appealed from is not fairly sustained by the evidence; (4) that the decision of the court is not fairly sustained by the evidence; (5) that the judgment appealed from is clearly against the weight of the evidence.

It will be observed that the court below by its rulings on the demurrer to the several breaches of the bond and by its finding of facts and conclusions of law relieved appellants from all liability except upon the fourth breach. As there is no cross-assignment of error, it follows that this fourth breach is the only one involved in the appeal. Omitting details this breach charges: “That during said term of office said Sharp as such officer and his deputies in said office received from various and numerous persons from time to time 25 cents each for making out and swearing persons to affidavits for mortgage exemptions in said county; that said Sharp as said auditor failed and neglected to keep any register of said fees so received, and failed, neglected, and refused to account for and to report the same to the board of commissioners of said county, and failed, neglected, and refused to pay the same over to the treasurer of said county.” The amount alleged to have been retained by such auditor and to be due the county is $600 and interest thereon.

Findings 1 and 2 find the facts with reference to Sharp's election as auditor, his term of office, the giving of his bond with his coappellants as sureties thereon, its acceptance, Sharp's oath, qualification, etc., as above set out. The other findings affecting this breach are, in substance, as follows:

“(3) That at the beginning of said term of office said defendant Sharp appointed as his deputies Maurice Wilcox and Marion Longfellow, who were duly sworn as such deputies, and who continued to act as such deputies throughout the entire term of four years. That it was agreed between said defendant Sharp and his deputy, Wilcox, that said deputy was to receive in addition to his regular salary other sums that might be made for making assessor's books and plats and mortgage exemptions fees. ***”

“(4) *** Each of said deputies was so employed at a fixed and definite salary to be paid by said Sharp. But it was agreed between each of them and the said Sharp that each of them might do work, such as copying into assessors' books from the tax duplicates from the county, the names of owners, descriptions of land so owned, and the valuation thereof, and plat and exemption fees, and receive pay therefor as their own money, and should not be required to account to said Sharp therefor.”

“(6) That during said term of said defendant Sharp as such auditor he administered the oath to 27 mortgage claimants and accounted to said Kosciusko county for 4 of them at 25 cents each, paying the sum of $1 into the county treasury. That during said term 2,026 mortgage exemptions were sworn to by claimants in said auditor's office before said deputy auditor, Maurice Wilcox, who was at that time acting as the deputy auditor of said county, who attached his jurat thereto as notary public, claiming to act as a notary public and collected the fees therefor claiming he was entitled to the fees as a notary public, and who received the fees therefor, none of which were paid to said county or accounted for in any way to said county. The blanks for said mortgage exemption claims were furnished at the expense of said county, and said claimants went to the office of said auditor to transact said business with said auditor and his deputies. That said mortgage exemption claims were made out to be filed with the auditor of Kosciusko county, Ind., and were so filed. That the fees for said mortgage exemption claims were paid to and received by said Sharp, auditor, and Wilcox, his deputy, and not turned into the treasury of said county, amounting during said term of office to the sum of $515.25. That said defendant Sharp frequently during said term directed persons calling at said auditor's office to said Wilcox for the purpose of having them sworn by him to their mortgage exemption claims. That said Maurice Wilcox was a notary public at the time he was appointed and qualified as deputy auditor, duly commissioned to act as such notary public for a period of time extending through the period of the time he served as such deputy auditor. That, in fact, said affidavits were made by Maurice Wilcox as deputy auditor. *** That said defendant Sharp was entitled to receive the sum of $3,500 per year salary as such auditor, which salary he has drawn in full for said term, and the amounts specified in the other findings herein were not a part of said legal salary, but were in addition thereto. That before the institution of this action the board of commissioners of this county demanded the said defendant to pay into the treasury of said county *** said mortgage exemption fees, *** all of which was refused by said defendant.”

Upon the above facts, conclusion of law No. 1, being the one involved in this appeal, is based, and is as follows: “(1) That the defendant Eff Sharp and the sureties on his bond, Mel. R. Williams, George W. McCarter, Benton Q. Morris, Angus C. McDonald, Marion F. Longfellow, Melvin A. Wilcox, Charles A. Rigdon, John Brubaker, Abe Brubaker, and David H. Lessig, as set out in finding No. 2 herein, are liable on said bond and indebted to the plaintiff herein for fees and charges collected by said Eff Sharp as auditor and Wilcox deputy, and wrongfully retained by him as set out in finding No. 6 herein and interest thereon, in the sum of $609.59, and that plaintiffs are entitled to recover of defendants said sum of $609.59 and costs.” In support of the alleged error of the court in its conclusion of law above, appellants contend that the facts found fail to conform to the allegations of the breach of the bond as charged in the complaint, in that they show simply that the affidavits for mortgage exemption were made out and the persons sworn thereto by Maurice Wilcox, who, in addition to being deputy auditor, was also a commissioned and acting notary public, and that in all he did in making out the claims, swearing persons thereto, and collecting the fees therefor he was claiming to act as notary public, and placed his jurat on said affidavits as notary public, and that it is not found as a fact that in the performance of any of said duties said Wilcox acted as deputy auditor of said county, unless the statement at the close of the finding “that in fact said affidavits were made by said Maurice Wilcox as deputy auditor” should be regarded as a finding of a fact.

It is insisted that this last statement is but a conclusion, but that, if it should be treated as a fact, it is inconsistent with the other fact found that said Wilcox “in what he did acted as a notary public,” and that the two findings would nullify each other, with the result that there would be no finding either way upon this averment of the breach of the bond, and that, therefore, the conclusion of law would not be supported by the finding. We cannot agree with this contention. It is true that the finding that Wilcox in fact made said affidavits as deputy auditor is in the nature of a conclusion based upon other evidentiary facts, but it was...