Snyder v. Pima County

• Decision Date: 16 April 1898
• Docket Number: Civil 625
• Citation: 53 P. 6,6 Ariz. 41
• Parties: MANLEY S. SNYDER et al., Defendants and Appellants, v. PIMA COUNTY, Plaintiff and Appellee
• Court: Arizona Supreme Court

53 P. 6

6 Ariz. 41

MANLEY S. SNYDER et al., Defendants and Appellants, v. PIMA COUNTY, Plaintiff and Appellee

Civil No. 625

Supreme Court of Arizona

April 16, 1898

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. J. D. Bethune, Judge. Affirmed.

The facts are stated in the opinion.

C. W Wright, and Barnes & Martin, for Appellants.

The statute provides: "All official bonds shall be joint and several." Par. 3070. "Such bond must be signed by the principal and at least two sureties." Par. 3079.

These are statutory commands, and are plain and unambiguous. The first command is, that the bond "shall be in form joint and several." This bond is in form joint only. The second command is, that the bond "must be signed by the principal." This bond is not signed by the principal.

It therefore follows that this is not a statutory bond. No construction except a manufactured one can make it so. It not being a statutory bond it must stand or fall as a voluntary or common-law obligation. The failure to make this distinction is the error this court made in its former opinion and decision.

The rule of law in this class of cases is this: "A surety has the right to stand on the precise terms of his contract." People v. Buster, 11 Cal. 220.

Cases covering joint and several bonds have no application to joint bonds, as is expressly held in the case of City v Dunlap, 14 Cal. 424, 73 Am. Dec. 658, and as the bond at bar is a joint bond, not signed by the principal, it is therefore no bond, and no liability can be created thereby.

"The liability of the sureties is conditional to that of the principal. They are bound if he is bound, and not otherwise. The very nature of the contract implies this. The fact that their signatures were placed to the instrument can make no difference in its effect. It purports on its face to be the bond of three. Some one must have written his signature first, but it is to be presumed upon the understanding that the others named as obligors would add theirs. Not having done so, it was incomplete and without binding obligation upon either." City v. Dunlap, 14 Cal. 424, 73 Am. Dec. 658; People v. Hartley, 21 Cal. 585, 82 Am. Dec 758.

William M. Lovell, District Attorney, for Appellee.

Are the sureties released from liability upon the bond sued on because it was not signed by Snyder, the principal?

It will be observed that each of the sureties bound himself in the sum of five thousand dollars for the faithful performance of the duties of his office by Snyder. Are not the sureties liable for the amounts for which they severally bound themselves? It is true that paragraph 3078 provides that "all official bonds shall be in form joint and several except as hereinafter provided, and payable to the territory of Arizona." But the bond sued on could not be joint and several, for the reason that Snyder, the principal, purported to be bound for the sum of twenty-five thousand dollars. The ten sureties, defendants, each bound themselves in the sum of five thousand dollars respectively, and no more; hence they are not jointly and severally, and could not be jointly and severally, bound with the principal for the sum of twenty-five thousand dollars. The bond then falls within the exception of the above-quoted section 3078 of the Revised Statutes, and becomes a several bond under paragraph 3081, which provides that when the penal sum of any bond required to be given amounts to more than one thousand dollars, the sureties may become severally liable for portions not less than five hundred dollars thereof, etc.

If the sureties intended to bind themselves respectively in the sum of five thousand dollars, as appears from the face of the bond, then they are severally liable. As to whether they intended to bind themselves severally or not, must be gathered from the bond itself. "In all written contracts the language used is the primary guide to the meaning, but it is not always conclusive, the language is sometimes ambiguous and often not conclusive of an intent to contract either way. In such cases the sense must be derived from the interests and relations of the parties as appearing in the contract." Clark on Contracts, 604.

In the case of People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758, the supreme court of that state held that the sureties upon a bond similar to the one here under consideration were not liable. But it must be remembered that the California statute did not contain the exception contained in paragraph 3078 of our statutes. Neither did it appear in that case that the principal had signed the oath of office on the back of the bond and filed therewith.

The supreme court of Wisconsin, in the case of Douglas County v. Brandon, 79 Wis. 641, 48 N.W. 969, held that the sureties were liable on such a bond.

In the case of Cockrill v. Davie, 14 Mont. 131, 35 P. 958, the supreme court of Montana held that where the liability of the principal in a bond is fixed by contract or operation of law, his failure to sign the bond does not affect the liability of the sureties thereon.

"The fact that such treasurer did not sign the bond did not exonerate the sureties on such bond from liability thereon, he having subscribed his oath of office on the back of such bond." Hall v. State, 69 Miss. 529, 13 So. 38.

"Where an officer writes his name in the body of an instrument which is delivered and accepted as his official bond, the same is valid as such, notwithstanding the omission of final signature." McLeod v. State, 69 Miss. 221, 13 So. 268.

The decision of this court in this case upon the former appeal (5 Ariz. 45, 44 P. 297) is the law of this case, and cannot properly be reviewed upon this appeal. That decision is res adjudicata as to the law of the case, and is not now open to review in this case by this court.

A judgment by the trial court, according to the intimation and direction of the court of appeals on a former appeal, will not be disturbed. Isert v. Davis, 18 Ky. Law Rep. 510, 37 S.W. 151; Bank v. Lewis, 13 Utah 507, 45 P. 890; Krantz v. Rio Grande Western R.R. Co., 13 Utah 1, 43 P. 623.

On a second appeal the case is governed by a decision on a former appeal as to a particular question, regardless of whether the question arose both times in the same manner. Board of Comm'rs v. Bonebreak, 146 Ind. 311, 45 N.E. 470.

A ruling on appeal becomes the law of the case on retrial, and is not reviewable on a second appeal. Pierce v. Underwood, 112 Mich. 186, 70 N.W. 419.

On a second appeal the judgment of the supreme court on a former appeal constitutes the law of the case. Bradley v. Morris, 67 Minn. 48, 69 N.W. 624.

On a second appeal the question of law decided on a former appeal are no longer open, but are res adjudicata. Carpenter v. McDavitt, 66 Mo.App. 1. See, also, State v. Morse, 66 Mo.App. 303; Fink v. Insurance Co., 66 Mo.App. 513; Meyer v. Shamp, 51 Neb. 424, 71 N.W. 57.

On a second appeal it is immaterial that the decision on the former appeal was not correct, the remedy having been by a petition to rehear. First Nat. Bank v. Asheville F. and L. Co., 120 N.C. 475, 26 S.E. 972; Silva v. Packard, 14 Utah 245, 47 P. 144; Pattern Paper Co. v. Canal Co., 93 Wis. 283, 66 N.W. 601, 67 N.W. 423; Litton Coal etc. Co. v. Persons, 15 Ind.App. 69, 43 N.E. 651; Bank v. State, 69 Tenn. 591; Arnold v. Woodward, 22 Colo. 348, 44 P. 507; Whiting v. Bohlen, 56 Ill.App. 287.

OPINION

STREET, C.J.

-- This was an action brought in the district court of Pima County by Pima County, plaintiff, on the official bond of Manley S Snyder, which had been executed to the territory of Arizona on the twenty-ninth day of December, 1888, to secure the performance of the official duties of Manley S. Snyder, as tax-collector of Pima County, for the term of two years, beginning on the first day of January, 1889, and ending on the last day of December, 1890, alleging that the said Snyder had, as tax-collector, failed to pay the amount of $4,070 to the treasurer of Pima County, which he had collected as...