State v. McDannel

• Decision Date: 18 October 1900
• Citation: 59 S.W. 451
• Parties: STATE et al. v. McDANNEL et al.
• Court: Tennessee Supreme Court

59 S.W. 451

STATE et al. v. McDANNEL et al.

Court of Chancery Appeals of Tennessee.

October 18, 1900.

Appeal from chancery court, Greene county; John P. Smith, Chancellor.

Action by the state and others against J. W. McDannel and others. From a judgment for complainants, defendants appeal. Affirmed.

Harmon & Swingle, for appellants. W. H. Piper, for appellees.

BARTON, J.

This suit was brought on behalf of Greene county against J. W. McDannel, late a trustee of the county, and against others as the sureties on his official bonds, among whom were the appellants, J. K. P. Hall and Robert McKee. On the hearing the chancellor decreed against all of the defendants, and from his decree the defendants Hall and McKee prayed and were granted an appeal, and have assigned errors in this court. The official term during which it is alleged the defendants were liable commenced with September, 1894, the regular commencement of the trustee's term. Two series of bonds were presented by the trustee to secure the various funds with which he was chargeable. These series of bonds, however, differed as to date. The one may be referred to as the "bonds of 1894," and the other as the "bonds of 1895." The bonds of 1894 were given and accepted at the commencement of the term, and were dated September 3, 1894. The last-named series of the bonds of 1895 were dated October 7, 1895. Both series of bonds are copied into the record, and are referred to as a part of this finding of fact. The chancellor decreed that those whose names appeared as sureties to the bonds of both series were equally liable for the default of the trustee. From this decree of the chancellor, as stated, the respondents Hall and McKee have appealed, and have assigned errors. It should be stated that McKee does not appear as surety on any of the first series of bonds, and Hall does not appear as surety on any of the first series that relate to the funds secured, and as to which default was adjudged, except as to the bond for road tax.

It is assigned as error that appellants should not have been held liable on the second series of bonds on which they appear, because such bonds were executed pending the term of the trustee, and that he was at that time a regular incumbent of the office, by election, induction, and qualification, and that the bonds offered were purely voluntary and without consideration, and had not been exacted by order of the county court upon the existing conditions and in the mode prescribed by statute, and that the conditions did not exist which required new bonds, and that the mode prescribed by statute was not pursued in a way to render the bondsmen on the second series liable as sureties. On this assignment of error, we find that the defendant J. W. McDannel was elected trustee of Greene county August 2, 1894, and was on September 3, 1894, inducted into office, having first executed, among other bonds, one for county revenue, one for school revenue, and one for road revenue. These bonds, by express terms, covered the entire term of two years, and are designated in the record as the "1894 bonds." On October 7, 1895, he executed another set of bonds for the same purpose as those executed September 3, 1894. These bonds by their express terms covered the entire term of two years, and are referred to in the record as the bonds of 1895. McDannel retired from office September 7, 1896, and was a defaulter, when the present bill was filed against him, and the judgment taken. The bill alleges that at the close of his term, September 7, 1896, the balance due the county from McDannel was: On county revenue, $5,871.93; on school revenue, $9,207.05; on road revenue, $634.98. It also alleges that the following payments on the balances were made prior to the filing of the bill: On county revenue, $4,110.35; on school revenue, $6,444.93; on road revenue, $444.49, — and that the amount remaining due was as follows: On county revenue, $1,761.58; on school revenue, $2,762.12; on road revenue, $190.49. No question was made as to the decree as to school and road revenues, but question is made as to the amount alleged to be due, and for which a decree was rendered, on county revenue. Among other things, it appears that McDannel charged the item of $1,221.23 poor tax to the general county fund. The chancellor found the amount due on each fund as stated in the bill, and gave judgment against all of the sureties for the same, with interest, and a penalty of 15 per cent. on the amount due, from which decree the appeal was prayed. In our opinion, it cannot avail the different sureties who are upon the second series of bonds that no order had been made by the county court requiring new bonds to be given, and that it does not appear even that they were exacted even by the chairman of the county court. It is provided by the Code, in section 1098, that it is the duty of the governor to require new or additional bonds or additional surety from the comptroller, secretary of state, and treasurer, whenever, in his opinion, the interest of the state demands it. Section 1099, Shannon's Code (section 778 of the Old Code), provides that all other public officers who are compelled to give official bonds may be required by the court or officer whose duty it is to take or approve such bonds to give additional surety or new bonds in the following cases: (1) Where the security of the original bond has become insufficient by the subsequent insolvency, death, or removal of the sureties thereto, or of any of them; (2) where there is good reason to fear the public interest may suffer from want of such new and additional security; (3) where the grand jury of the county, or a majority thereof, certify the insufficiency of the original bond. Now, here are provisions giving authority to the proper court or officer to require and compel the execution of such bonds; and, although it does not affirmatively appear that an order was made, yet there is nothing to prevent an officer from giving, nor the court from accepting, additional bonds, in order to obviate the necessity of such an order. Inasmuch as the Code provides that new bonds may be required, and hence accepted, it certainly cannot be said that an officer cannot obviate the necessity and the mortification of an order on him requiring these new bonds by voluntarily giving them. It appears that the Code requires that they shall be given whenever the public interest requires it, and when bonds are thus voluntarily given and accepted, as these were, by the proper authorities, we must assume that the proper conditions existed, and justified the giving and acceptance. A bond voluntarily given is binding on the principal and sureties. See U. S. v. Tingey, 5 Pet. 114, 8 L. Ed. 66; Lay v. State, 5 Sneed, 607; McLean v. State, 8 Heisk. 263. Section 1092 of the Code provides that every official bond executed under the Code is obligatory on the principal and sureties thereon — First, for any breach of the conditions during the time the officer continues in office, or in the discharge of any of the duties of the office; second, for the faithful discharge of the duties which may be required of such officer by any law passed subsequently to the execution of the bond, although no such condition is expressed therein; third, for the use and benefit of each person who was injured, as well as any wrongful act committed under color of his office, or his failure to perform, or the improper or neglectful performance of, the duties imposed by law. Section 1094, Shannon's Code, provides that whenever any officer required by law to give an official bond acts under a bond which is not in the penalty payable or conditioned as prescribed by...