State v. Gant
Decision Date | 27 June 1931 |
Docket Number | 392. |
Citation | 159 S.E. 427,201 N.C. 211 |
Parties | STATE et al. v. GANT et al. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Schenck, Judge.
Summary proceedings by the State of North Carolina, Nathan O'Berry, Treasurer, and Baxter Durham, State Auditor against M. W. Gant and the Ætna Casualty and Surety Company on certain official bonds. Judgment for the plaintiffs, and the defendant Ætna Casualty and Surety Company appeals.
No error.
In summary proceeding against defaulting officer and surety on official bonds, ruling defendants into trial immediately after issue joined at same term held not denial of legal right (C.S. § 356, and § 557, Pub.Laws 1923, c 54).
This is a summary remedy on official bonds, instituted by plaintiffs against M. W. Gant, clerk of the superior court of Guilford county, N. C., and his bondsmen, Ætna Casualty & Surety Company, defendants, under C. S. § 356.
Notice was duly given defendants, in accordance with the statute and complaint filed against them alleging that M. W. Gant, on March 22, 1913, was duly appointed clerk of the superior court of Guilford county, N. C., and, on assuming the duties of the office: (1) Executed a bond on March 22, 1913, in the sum of $12,500 with a bonding company as surety, known as the Ætna Accident & Liability Company, liability to begin from the date of the bond and continue until his successor is elected and qualified. (2) In the Fall of 1914, the defendant Gant was duly elected clerk for the term of four years and executed another bond in the sum of $12,500, with the same surety bonding company, liability for the term of four years beginning with the first Monday in December, 1914. The defendant Ætna Casualty & Surety Company acquired the assets of the Ætna Accident & Liability Company, and assumed the obligation on these bonds. (3) In the Fall of 1918, the defendant Gant was duly elected clerk for the term of four years, executed a bond in the sum of $15,000 with Ætna Casualty & Surety Company, defendant, as surety, liability for the term of four years beginning with the first Monday in December, 1918. (4) In the Fall of 1922, the defendant Gant was duly elected clerk for the term of four years, executed a bond in the sum of $15,000 with Ætna Casualty & Surety Company, defendant, as surety, liability for the term of four years beginning the first Monday in December, 1922. (5) In the Fall of 1926, the defendant Gant was duly elected clerk for the term of four years, executed a bond in the sum of $25,000 with Ætna Casualty & Surety Company, defendant, as surety, liability for term of four years beginning the first Monday in December, 1926. All the bonds had the following provision in them:
"Now, if the said Mason W. Gant shall account for and pay over according to law all moneys and effects which have come or may come into his hands by virtue or color of his office or under an order or decree of a Judge, even though such order or decree be void for want of jurisdiction or other irregularities, and shall diligently preserve and take care of all books, records, papers and property which have or may come into his hands, by virtue or color of his office and shall in all things faithfully perform the duties of his office as they are, or hereafter shall be prescribed by law, for the term above mentioned, or until his successor be duly elected or appointed and qualified, then this obligation is to be void; otherwise, to remain in full force and effect." The bonds were given in accordance with C. S. § 927.
The complaint, among other things, alleges:
Exhibit A shows 155 pensioners' names and the amount due each; all being dead except two, who are living, but did not receive the proceeds of the warrants. The evidence on the trial showed more than 950 warrants and vouchers drawn in favor of Confederate pensioners and collected by defendant Gant, clerk, extending over a period of seventeen years.
After the trial had proceeded about a week, the following occurred: Mr. E. D. Broadhurst, one of the attorneys for M. W. Gant, stated in open court: "May it please your Honor, the defendant Gant, in view of his physical condition and the testimony that has been adduced here, desires to say that the defendant Gant will not resist a judgment--such judgment as may be rendered under your Honor's instructions."
The defendant Ætna Casualty & Surety Company moved that the action should be dismissed. (1) That this action was not commenced by summons as required in civil actions, C. S. § 475. (2) That it does not appear by the complaint that Gant, as clerk, has admitted that the money sought to be recovered in this proceedings, that he has or ever had same in his hands, such admission being a condition precedent to the remedy under C. S. § 356. (3) That it appears affirmatively that the funds were never held under order of this court, or subject to control or direction of the court. (4) That it appears affirmatively that the allegations of the complaint does not come within the provisions of C. S. § 356, therefore, the remedy is by civil action commenced by summons. "For that the funds sought to be recovered in this action, if in fact they did come into the defendant Gant's hands, did not come into his hands by virtue or color of his office, or under an order or a decree of the Judge, and even if the defendant Gant is guilty of the matters and things alleged in the complaint this defendant is in no way liable or responsible therefor, as the matters and things alleged are not within the provisions of the bonds alleged and not being within the terms and provisions alleged there has been no breach thereof, and this defendant is in no way liable to the plaintiffs." Other reasons are set forth why the proceeding should be dismissed. The defendant surety company then answered, not waiving any rights to have the action dismissed. The defendant company denied all liability, and in the answer avers that the bonds are liable only for such defalcations as are covered "by the terms, stipulations and conditions of said bond, if any, occurring during the term for which said bond was given."
The defendant surety company further sets up the plea of the statute of limitations. In conclusion, ...
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