State v. Gant
| Citation | 159 S.E. 427 |
| Decision Date | 27 June 1931 |
| Docket Number | No. 392.,392. |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE et al. v. GANT et al. |
STATE et al.
v.
GANT et al.
No. 392.
Supreme Court of North Carolina.
June 27, 1931.
[159 S.E. 428]
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.
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
[159 S.E. 429]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: "That a list of all warrants and vouchers with their several dates, names of payees and amount, sent by the plaintiff Auditor and received by the defendant, M. W. Gant, as Clerk of the Superior Court for each six months in each year from 1913 to 1930, both inclusive, which were made payable to pensioners then and there dead and which were wrongfully embezzled, abstracted, misapplied and not delivered to the parties entitled to receive same, Is tabulated and set out in an attached exhibit, marked 'A, ' and asked to be taken as a part of this allegation as fully and as completely as if herein set out In detail, all of which said warrants and vouchers were duly and regularly paid by the plaintiff Treasurer upon the forged endorsement of the said M. W. Gant, Clerk of the Superior Court. That the total amount so received and misappropriated by the defendant, M. W. Gant, as shown by the attached Exhibit 'A', aggregates the sum of $59,310.00, and that the plaintiffs aver that they-are entitled to judgment against the defendant M. W. Gant and the defendant Ætna Casualty and Surety Company, as surety, to cover said sum, and with interest thereon as a penalty, as prescribed by statute, of twelve per cent. (12%) from the time of the receipt of each of said warrants above mentioned, calculated up to and including the date of the rendition of the judgment herein asked for."
Exhibit A show155 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 avers that even if the roll of names furnished the State Auditor, as alleged in the complaint, was continually since 1913 false, in that it contained the names of pensioners who were dead and the names of other persons not entitled to receive pensions, the defendant avers that this was not an act of M. W. Gant, as Clerk of the Superior Court, but was such as a member of the County Board of Pensions, and that it was the duty of the State Board to examine each application for a pension. And defendant avers that it is in no way liable therefor or in any way responsible therefor by reason of being surety for the said M. W. Gant or issuing the bonds sued on. For that it appears upon plaintiff's complaint that plaintiffs have joined together as one cause of action five separate and distinct causes of action, and are undertaking to recover as if the five bonds alleged constitute one entire transaction, when in fact and in law each bond of the defendant, M. W.
[159 S.E. 430]Gant, as clerk, is liable only for defalcations occurring during the term for which the bond is given. For that plaintiffs are undertaking by said proceeding to deny this defendant right of trial by jury, in violation of the guarantees of the Constitution of the State of North Carolina, article 1, § 19, and to deprive this defendant of its property without any process of law, in violation of article 1, § 17, of the Constitution of the State of North Carolina, and the Fourteenth Amendment of the Constitution of the United States."
The defendant surety company further sets up the plea of the statute of limitations. In conclusion, "This defendant now, this being its first appearance in Court in this cause, demands a trial by a jury in a properly constituted civil action, and that this defendant be allowed the legal right to put at issue all matters of fact and have the same passed upon by a jury as guaranteed to it under the provisions of Article 1, §§ 17 and 19 of the Constitution of the State of North Carolina, and of the Fourteenth Amendment to the Constitution of the United States. Wherefore, this defendant having answered plaintiffs' complaint as fully as it is advised it is its duty to do, prays that this cause be dismissed as to it; that it recover its costs to be taxed by the Clerk, and for such other and further relief as to the Court may seem meet and just." Other contentions were made, but they will be considered in the opinion.
The plaintiffs replied and denied the allegations of the answer inconsistent with the facts alleged in the complaint. "Plaintiffs say that the first knowledge or information that they had that the...
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