St. v. Brd.Dus

• Decision Date: 09 March 1899
• Parties: STREET, County Treasurer, v. BROADDUS.
• Court: Virginia Supreme Court

32 S.E. 466

(96 Va. 823)

STREET, County Treasurer,

v.BROADDUS.

Supreme Court of Appeals of Virginia.

March 9, 1899.

Deputy Treasurer—Liability for Deficiency— Damages—Taxes—Jurors—Affidavits—Mistake.

1. Under Code. § 854, making a deputy county treasurer liable for deficiency in taxes not accounted for by him, with damages at 10 per cent, a month from the time such taxes should have been accounted for, a verdict will riot be set aside, as failing to include the damages, where it does not appear as of what date the jury found the deficiency, and hence whether the damages were included.

2. Affidavits of jurors will not be received to show that the damages were not included, it not being shown that failure to do so was the result of mistake.

Error to circuit court, Essex county.

Action by W. H. Street, county treasurer, against one Broaddus. There was a judgment for plaintiff for less than the relief demanded, and he brings error. Affirmed.

Clagget B. Jones, for plaintiff in error.

Thos. E. Blakey and W. W. Woodward, for defendant in error.

KEITH, P. The plaintiff in error, W. H. Street, treasurer of Essex county, gave notice to Broaddus, his deputy, that he would ask the circuit court of Essex county for judgment against him, and his sureties on his bond of indemnity, for certain taxes and levies which, as deputy treasurer, he had collected and failed to account for. Upon the trial the jury rendered a verdict for $756.55, which the plaintiff asked the court to set aside, upon the ground that the jury should have given 10 per cent, damages per month for the amount of the deficiency In said taxes and levies from the time payment of them should have been made; secondly, that the verdict was contrary to the law and the evidence. The plaintiff in error also moved the court to enter judgment upon said verdict, with 10 per cent, damages per month from the 1st of January, 1890; but the court denied all of said motions, and entered judgment upon the verdict as rendered, with 6 per cent, interest thereon, to which rulings of the court the plaintiff excepted, and the case is now before us upon a writ of error to this judgment

The case is to be considered as upon a demurrer to the evidence, which consists of the testimony of Street, the plaintiff, and of Broaddus, the defendant. With the testimony of Broaddus there appears a statement of the transactions between himself and Street which shows a balance as of January, 1894, of $1,035. He says in his testimony that, in addition to credits claimed in that statement, he had paid the sum of $518.14. Just when the jury applied this latter payment does not appear from the evidence. There is a presumption in favor of the correctness of the judgment of the circuit court, and he who seeks to reverse it must show error to his prejudice. The credit of $518 reduces the amount due, according to Broaddus' testimony, to $517, but the record does not enable us to say at what date the jury struck the balance.

Section 854 of the Code provides that "if any such deputy shall fail to collect or having collected fail to pay over to his principal any taxes or levies which he ought to have collected or may have received, he and his sureties shall be liable to such principal, upon motion, for the amount of the deficiency in said taxes or levies, together with damages thereon, at the rate of ten per cent, per month from the time such payment should have been made."

This statute is highly penal in its nature. It Is not to be extended by implication, but he who seeks to avail himself of the ruinous penalties which it imposes must bring himself strictly within its terms. It Is clearly for the jury to ascertain the amount of the deficiency, the date when the default occurs, and, upon the balance thus ascertained, to impose damages, as provided in the section above cited. Those damages, we think, are to be embraced in the verdict, and upon the verdict it was the duty of the court to enter its judgment, with interest...