Silver Bow County v. Davies
| Decision Date | 04 February 1910 |
| Citation | 107 P. 81,40 Mont. 418 |
| Parties | SILVER BOW COUNTY v. DAVIES et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.
Action by Silver Bow County against William E. Davies and another. Judgment for plaintiff, and defendants appeal. Affirmed.
C. M Parr, John F. Davies, and Walsh & Nolan, for appellants.
Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for respondent.
The plaintiff brought this action to recover on the official bond of the defendant William E. Davies, given as clerk of the district court of Silver Bow county, certain sums of money alleged to have been lost to the plaintiff through the wrongful acts of one W. P. Farrell while acting as Davies' chief deputy. The defendant corporation is his surety. Davies was elected to the office in 1904 for the term of four years, beginning January 2, 1905, and entered upon the discharge of his duties upon that date, having qualified and filed his official bond as required by law. He continued in office during the term. Farrell served as his chief deputy during the year 1905, and a portion of the year 1906. The wrongful acts by which the plaintiff suffered loss are alleged in the complaint as follows: Then follow allegations to the effect that demand was made upon the defendants for the amount claimed to be due, and that payment by them was refused.
It is admitted in the answer that Farrell did issue fraudulent and fictitious certificates which purported on their face to be juror and witness certificates, to the amount alleged in the complaint. It is averred, however, that they were of no apparent validity, because they were not issued under the seal of the court as required by law, and that, in issuing them, Farrell acted as an individual, and not as deputy clerk. It is also averred that payment of these certificates by the treasurer was made in violation of law, because he was prohibited by law from disbursing the funds of the county upon them. The reply denies that Farrell acted as an individual, and not as deputy clerk. It admits that the certificates were not issued under seal. It is then alleged that it had theretofore long been the custom and practice in the clerk's office to issue juror and witness certificates without seal; that this custom was well known to, and acquiesced in by, defendants; that the certificates mentioned in the complaint had, because of it, been treated by the treasurer as valid, and had therefore been accepted and paid; and that for this reason the defendants ought to be, and are, estopped to say that said certificates were not under seal.
After hearing the evidence introduced by plaintiff, the defendants having declined to introduce any, the court directed the jury to return a verdict for plaintiff. The appeal is from the judgment upon the judgment roll alone. The questions submitted for decision are: (1) Does the complaint state a cause of action; and (2) in view of the admissions in the reply, did the court err in entering judgment for plaintiff?
1. It is argued that the complaint is insufficient, in that it gives no information as to the character of the certificates or what they recited, or how they were signed, or to whom they were addressed. It is alleged that the defendant Davies was duly elected to the office of clerk, and that, having qualified, he entered upon the discharge of his duties as such and was occupying the office during the time mentioned; that Farrell was his chief deputy; that as such deputy during the time mentioned he issued the fraudulent and fictitious certificates; and that they were thereafter presented to the treasurer of Silver Bow county for payment, and were paid out of the funds of the county. Under the Code, it is the rule that the allegations of a pleading are to be liberally construed, with a view to substantial justice between the parties. Rev. Codes, § 6566. "Under favor of this rule, whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred." Phillips on Code Pleading, 352; Baylies' Code Pleading, 49, 102; 31 Cyc. 80. The allegation that Farrell issued the certificates as chief deputy implies that he issued them in the form prescribed by the statute--that is, over the signature of the clerk, his principal, attested by the seal of the court (Rev. Codes, §§ 3154, 3179, 3183)--that they were issued to persons who had ostensibly served as jurors and witnesses during the sittings of the district court of Silver Bow county; that upon their face they stated the facts required to be stated; and that the statements thus set forth were false, in that the ostensible jurors and witnesses had in fact performed no service whatever. The sections of the statute cited do not require the certificates to be addressed to the treasurer. His duty in the premises requires him to pay upon their presentation. Rev. Codes, §§ 3179, 3183. While it may be said that the pleading is somewhat indefinite in its statements, and may have been open to attack by special demurrer, yet, taken as a whole, the only conclusion to be drawn from it is that Farrell, by issuing apparently genuine certificates to fictitious persons, or persons who were not entitled to them, abused his position to the injury of the county by causing a misappropriation of its funds. The demurrer was properly overruled.
2. When the fraudulent conduct of Farrell was discovered and brought to the attention of the authorities of Silver Bow county, the county attorney charged him by information with the forgery of two of the jurors' certificates involved herein, and he was convicted and sentenced to terms of imprisonment. Upon application to this court for habeas corpus, it appeared from the copies of the certificates set forth in the informations that in issuing the originals Farrell omitted to impress upon them the seal of the court. This court held that such an instrument has no apparent legal validity, and therefore that the false and fraudulent making of it does not constitute forgery. Accordingly, it was held that the convictions were improper, and that the complainant was entitled to be released from custody. In re Farrell, 36 Mont. 254, 92 P. 785. It was pointed out in the opinion in that case that such a certificate does not upon its face import a legal liability of the county, because the statute specifically directs it to be issued under the seal of the court, over the signature of the clerk by himself or his deputy (Pol. Code 1895, § 4645; Rev. Codes, § 3179), and because the treasurer must "disburse the moneys of the county only on county warrants issued by the county clerk, based upon orders of the board of county commissioners, or as otherwise provided by law" (Pol. Code 1895, § 4350; Rev. Codes, § 2986). The phrase, "or as otherwise provided by law," it was pointed out includes jurors' certificates, and the restriction as to the power of payment by the treasurer applies as well to them as to other claims against the county. If they do not bear upon their face the evidence of genuineness which the statute prescribes, to wit, the signature of the clerk and the seal of the court, the treasurer has no authority to pay them. Referring to the respective duties of the treasurer and the clerk, with reference to them, this court said: The rule applicable to jurors' certificates applies also to witnesses' certificates. The clerk must observe the same formalities in issuing them. Rev. Codes, §§ 3154, 3183.
The liability of defendants in this case is not in our opinion to be determined by the fact that in manufacturing and issuing the certificates Farrell was not technically guilty of the crime of forgery. Their liability turns upon an answer to the question: Did the issuance of the certificates, in the form in which they were issued and...
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