State, to Use of Perkins v. Barnes

• Citation: 73 N.W. 80,10 S.D. 306
• Parties: STATE, to Use of PERKINS, v. BARNES et al.
• Decision Date: 19 November 1897
• Court: Supreme Court of South Dakota

73 N.W. 80

10 S.D. 306

STATE, to Use of PERKINS, v. BARNES et al.

Supreme Court of South Dakota

November 19, 1897

Appeal from circuit court, Hyde county; D. Haney, Judge.

Action by the state, for the use and benefit of Daniel A. W Perkins, against Fred M. Barnes and others, to recover the value of a certain county warrant. Judgment was entered for plaintiff, and defendants appeal. Affirmed.

John L Pyle, for appellants. Titus E. Price and Kirke W. Wheeler for respondent.

CORSON P. J.

This was an action brought in the name of the state, on behalf of Daniel A. W. Perkins, formerly district attorney of Hyde county, to recover of the defendant Barnes, who was formerly county auditor of that county, and his sureties, the value of a county warrant issued for a quarter's salary, ending September 30, 1890, which had been duly issued by said Barnes as auditor, but delivered by him to a mortgage company, to which it was claimed the same had been assigned. Judgment was entered for the plaintiff, and the defendants appeal.

The defendants pleaded in their answer that the quarter's salary in controversy was assigned by said Perkins to the Dakota Farm-Mortgage Company, and that in pursuance of the terms of such assignment the auditor delivered said county warrant to that company. On December 23, 1889, the said Perkins made out and verified the following account against the county:

"Highmore, S. D., December 23, 1889. Hyde County to D A. W. Perkins, Dist. Atty., Dr. To one quarter's salary, July 1st to Oct. 1st, 1890."

On the same day the said Perkins made the following assignment thereon: "Highmore, S. D., Dec. 23, 1889. For value received, I hereby assign the within account to the Dakota Farm-Mortgage Company, of Huron, South Dakota; and I hereby authorize and instruct the county auditor of Hyde county to deliver the county warrant drawn in payment hereof to the Dakota Farm-Mortgage Company, aforesaid, or its duly-authorized agent. Witness my hand, day and date above. D. A. W. Perkins."

This account and assignment bear date of filing by the auditor, October 6, 1890. On the same day the said Perkins presented to the board the following communication and account:

"I herewith present to the board the annexed bill, and, having made an assignment to the Dakota Farm-Mortgage Company, still I protest against its allowance to them, and claim the annexed bill myself. D. A. W. Perkins.

October 6, 1890. County Account and Affidavit. Hyde County to D. A. W. Perkins, Dr. Quarter's salary from July 1st to October 1st, 1890, less $25 to Frank Drew, $100.00. [ Verification to bill.]" (Which appears to have been filed on the same day.)

The bond upon which this action was based ran to Hyde county, and not to the territory, as provided by section 3, c. 10, Laws 1887, which requires the bonds of county auditors to be given to the territory. Comp. Laws, § 648. A demurrer was interposed to the complaint upon the following grounds: "There is a defect of parties plaintiff, for the reason that it appears from the face of the complaint that Daniel A. W. Perkins is the real party in interest, and he should have been plaintiff, instead of the state of South Dakota. It appears from the face of the complaint that the bond upon which this action is brought runs to the county of Hyde, in the state of South Dakota, formerly the territory of Dakota, and not the state of South Dakota nor the territory of Dakota, and for that reason the state of South Dakota is not a proper party to the action. The said complaint does not state facts sufficient to constitute a cause of action against the defendants, or either of them." This demurrer was overruled, to which defendants duly excepted.

Two questions are presented by the record for our determination: (1) Did the circuit court err in overruling the defendants' demurrer to the plaintiff's complaint? (2) Was the assignment in this case void, as being against public policy?

The appellants contend that the demurrer should have been sustained, for the reason that as the bond ran to Hyde county, and not to the territory, this action was not properly brought in the name of the state, but should have been instituted in the name of Perkins alone. Section 10 of chapter 10, Laws 1887, being section 655, Comp. Laws, reads as follows: "An action may be brought against the county auditor and his sureties in the name of the territory of Dakota, and for its use, or for the use of any county or person injured by the misconduct in office of the auditor, or by the omission of any duty required of him by law." This section, as will be observed, expressly prescribes the manner in which an action upon the official bond of a county auditor shall be instituted, and plaintiff seems to have strictly followed the statute in this case. Undoubtedly, the bond should have been executed to the state, under the law of 1887, as that law was passed subsequently to section 1373, Comp. Laws, and superseded it, so far as its provisions might have been held to include the official bonds of county auditors. But the error in naming Hyde county as the obligee, caused probably by the law of 1887 (section 648, Comp. Laws) being overlooked, was properly treated by the trial court as immaterial, and the bond regarded as in legal effect executed to the territory. The demurrer was therefore properly overruled. This seems to be the view taken by the supreme court of Wisconsin in similar cases. City of Platteville v. Hooper, 63 Wis. 387, 23 N.W. 583; Lewis v. Stout, 22 Wis. 234; Kollock v. Parcher, 52 Wis. 393, 9 N.W. 67; Supervisors v. Hall, 42 Wis. 59.

This brings us to the second question presented. It is urged by the learned counsel for appellants that, as the assignment was not filed until after the quarter's salary was earned, there was in fact no assignment of future salary. But we think that under the...