State v. Enslow

• Decision Date: 25 March 1896
• Citation: 24 S.E. 679,41 W.Va. 744
• Parties: STATE, to Use of BLAKE, v. ENSLOW et al.
• Court: West Virginia Supreme Court

24 S.E. 679

41 W.Va. 744

STATE, to Use of BLAKE, v. ENSLOW et al.

Supreme Court of Appeals of West Virginia.

March 25, 1896

Submitted January 18, 1896.

Syllabus by the Court.

The payment of money to the clerk in vacation is not equivalent to the payment of money into court, and, if the clerk fails to return such money into court, the sureties on his official bond cannot be held responsible for its loss.

Error to circuit court, Cabell county.

Action by the state of West Virginia, at the relation of Cappie B Blake, against F. B. Enslow and Z. T. Vinson. Judgment for defendants, and the state brings error. Affirmed.

Campbell & Holt, for the State.

Simms & Enslow, for defendants in error.

DENT J.

This is a writ of error of Cappie B. Blake to a judgment of the circuit court of Cabell county in a certain action therein pending, wherein she was plaintiff and F. B. Enslow et al were defendants. The facts adopted from the petition are as follows, to wit: On the 8th day of July, 1892, the Ohio River Railroad Company, which was incorporated for a work of internal improvement, desiring to appropriate certain gravel from the lands of Cappie B. Blake, as provided by section 14 of chapter 52 of the Code, secured the appointment of commissioners as therein provided, who, after viewing the premises, returned their report, fixing the just compensation to said Cappie B. Blake for said gravel at $950. This report was filed in the clerk's office of the circuit court aforesaid on the 22d day of July, 1892; and thereupon the Ohio River Railroad Company paid into the hands of B. C Wilson, clerk, the aforesaid sum of $950, and entered upon the land and commenced the removal of said gravel. Cappie B. Blake filed exceptions to said report, on the grounds of the inadequacy of the compensation, and demanded that such compensation be ascertained by a jury of freeholders, as provided by chapter 42 of the Code. Such trial was subsequently had, resulting in a large increase of the compensation; and a judgment was rendered against said applicant for the excess over the sum awarded by said commissioners, and the clerk was ordered to pay the sum of $950 (less $100 before that time paid out) to Cappie B Blake. The clerk failed to pay the sum, or any part of it, and died insolvent. Thereupon debt was brought upon his bond, to recover the same; and the court below ruled that the bond of the clerk was not liable for the payment thereof, and rendered judgment in favor of the defendants.

The only question presented by the record is whether the sureties on the clerk's official bond are liable for his default in the payment of this money. The condition of the bond is that he will "account for and pay over, as required by law, all money which may come to his hands by virtue of said office." This means, of course, such money as may be legally paid to him as such clerk, or which the law authorizes him to receive in his official capacity. The statute under consideration authorized the railroad company to pay the compensation, when determined, either to the owner of the land, Cappie B. Blake, or to the circuit court. The preference is given to the landowner, and, if she refused to receive it, then the company could adopt the other alternative, and pay into court. The court not being in session, and the landowner refusing to receive the compensation, the company deposited it with the clerk, to await the pleasure of the court. There is no evidence that the...