State Ex Rel. Cook v. Fid. & Deposit Co. Of Md.

• Decision Date: 09 May 1922
• Docket Number: (No. 4431.)
• Citation: 112 S.E. 319
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. COOK. v. FIDELITY & DEPOSIT CO. OF MARYLAND.

112 S.E. 319

STATE ex rel. COOK.

v.FIDELITY & DEPOSIT CO. OF MARYLAND.

(No. 4431.)

Supreme Court of Appeals of West Virginia.

May 9, 1922.

(Syllabus by the Court.)

Error to Circuit Court, Marion County.

Proceeding by the State on the relation of James F. Cook against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff, and defendant brings error. Affirmed.

Neely & Lively, of Fairmont, for plaintiff in error.

Charles H. Leeds, of Fairmont, for defendant in error.

POFFENBARGER, P. [1] The judgment to which this writ of error was awarded gave the plaintiff a recovery of $100, the debt sued for, 8 cents interest thereon and $6.05 costs in the justice's court, from which the case came into the circuit court by appeal. As the amount in controversy must be more than $100, to confer jurisdiction upon this court, and, it is assumed by the defendant in error, that the amount here involved is not sufficient, he has moved for a dismissal of the writ, as having been improvidently awarded. He evidently thinks the margin of 8 cents insufficient. The maxim, de minimis non curat lex, does not apply. The Constitution fixes an arbitrary jurisdictional standard. Interest may be counted in. State v. Boner, 57 W. Va. 81, 49 S. E. 944; Arnold v. County Court, 38 W. Va. 142, 18 S. E. 476. Just as effective is $1.80 as $8.10 or any other amount. State v. Boner. Any amount within the jurisdiction, however small, suffices. 3 C. J. 377, citing several cases. Lack of the amount legally required, by one cent, defeats the jurisdiction. Willow Land Co. v. Goldschmidt, 11 Cal. App. 297, 104 Pac. 841. It is unnecessary to inquire whether the $6.05 can be included.

The liability enforced by the judgment is one of suretyship in an official bond. It was denied in the court below, and is resisted here, upon the contention that the money in question did not come into the hands of the principal in the bond, a public officer, by virtue of his office. He was the clerk of a circuit court, and the condition of the bond was that he should faithfully perform and discharge the duties of his office, according to law, and account for and pay over all moneys coming into his hands by virtue of his office. The money in question here was a deposit of cash, $100, made with the clerk, under an order of the court, by a nonresident plaintiff, to secure costs and fees, in lieu of the execution of the statutorybond required for such security. Eater, such a bond in the penalty of $100 was given, and an order entered, permitting the plaintiff to withdraw the cash so deposited by him. It was never paid by the clerk. After his death, this action was brought against the surety in the bond.

Of course, a surety may stand upon the letter of his contract, fairly and reasonably interpreted. It is said to be strictissimi juris. State v. Barnes, 52 W. Va. 85, 43 S. E. 131; State v. Enslow, 41 W. Va. 744, 24 S. E. 679; State v. Mankin, 68 W. Va. 772, 70 S. E. 764; Wait v. Homestead Building Ass'n, 76 W. Va. 431, 85 S. E. 637. But, according to these authorities and a host of others, this principle and the terms of the bond require no more than that the money in question went into the hands of the clerk, by virtue of his office. Whether it did or not is the only inquiry necessary to determination of the question of liability. In State v. Enslow, cited, the money was paid to a clerk of a circuit court, without the entry of an order authorizing him to receive it. Here the money was paid to the clerk in court, with the knowledge and express assent and approval of the court. There was an adjudication of the sufficiency of the deposit as security for costs. Sufficiency thereof as such, although preliminary in character, was a question that arose for decision in the progress of the case. It was a question of such character as, perhaps, upon rulings properly invoked and excepted to, might have brought the case to this court on a writ of error for review. If, after the deposit so made, the trial court, deeming it insufficient as security, on account of departure from the statute, had dismissed the action, the order would...