State v. Phares
| Decision Date | 27 September 1884 |
| Citation | 24 W.Va. 657 |
| Parties | STATE FOR USE, & C., v. PHARES. |
| Court | West Virginia Supreme Court |
Submitted Jun. 16, 1884.
WOODS JUDGE, Absent.[a1]
1. In an action on a sheriff's bond, executed under the statute in force in 1862, it is not necessary, that the declaration should allege, that the levy, which the sheriff was charged with collecting and failing to pay over to the party entitled to receive it, was made by a majority of the justices of the county, or that they had all been summoned to attend the court, at which the levy was made. If the failure to summon the justices or the fact, that a majority of the justices were not present, when the levy was laid, could avail the defendant, it must be relied on as a defence. (p. 659.)
Quaere: Can a sheriff, who has collected an illegal levy, which was not superseded by the tax-payers in the mode prescribed by the statute, and which was voluntarily paid by the tax-payers, keep it in his pocket and refuse to pay it because it was illegal? (p. 659.)
2. In a declaration on an official bond of a sheriff it is not necessary to allege the non-payment of the penalty of the bond by the obligor; it is sufficient in the assignment of the breach to allege the non-payment of the sum demanded by the principal in the bond, whose duty it was to pay it. (p 660.)
3. In a case tried by a jury, no matter how many exceptions are taken to rulings of the court made during the trial, unless a motion is made before the trial-court to set aside the verdict, and that motion is overruled, all such errors saved will by the appellate court be deemed to have been waived. (p. 661.
4. A new trial for errors committed during trial can only be had after motion made in the trial-court and overruled; as this Court will not ex mero motu grant a new trial in case no such motion was made in the court below. (p. 661.)
The facts of the case appear in the opinion of the Court.
G D. Camden and C. J. P. Cresap for plaintiff in error.
Martin & Woods for defendant in error.
Johnson, President:
The plaintiff, State of West Virginia, successor to the commonwealth of Virginia for the use of William C. Price in November, 1871, brought its action of debt in the circuit court of Randolph county against Jesse F. Phares, late sheriff of said county, and sureties for a breach of his official bond; the writ was returned executed as to said Jesse F. Phares and Benjamin Phares, one of the said sureties, and, the bond being joint and several, the declaration was filed against the said two defendants. They appeared and demurred to the declaration; and the court overruling the demurrer, they pleaded covenants performed and five special pleas, to all of which the plaintiffs replied. The defendants tendered another special plea in these words: " And the defendants for further plea say, that the county court of Randolph county was not so constituted and empowered as to lawfully lay the county levy of the said count, and did not on the said July 24, 1862, lay a lawful levy for the said county of Randolph for the year 1861 and lawfully direct the sheriff to collect the same and out of the proceeds pay to the plaintiff the said sum of two hundred and ninety-seven dollars; and this they are ready to verify, & c." This plea being objected to by the plaintiff, the objection was sustained; and the court refused to permit the same to be filed, and the defendants excepted. The defendants saved also a second exception to the introduction in evidence of the bond sued on. They also saved a third exception to the introduction in evidence of certain orders of the county court. The jury, before whom the issues were tried, on the 16th day of May, 1879, rendered a verdict in favor of the plaintiff against the defendants for four hundred and nine dollars and twenty-eight cents, upon which the court entered judgment.
To this judgment the defendants obtained a writ of error and supersedeas.
The first error assigned is, the overruling of the demurrer to the declaration, because, first, the action could not be maintained in the name of the State of West Virginia, successor to the commonwealth of Virginia. There is nothing in this assignment of error, as the action in this form is expressly authorized by section 2, chapter 10 of the Code, under which the action was brought.
The second ground of demurrer is, that the declaration does not allege, that the order of the county court directing the county levy to be laid and collected was made by a court composed of a majority of the justices of the county, or that the justices had been personally summoned to attend to act upon the matter of the levy. Nor does it show for what purpose the allowance was made to said Price, as required by section 3 of chapter 53 of the Code of 1860. This section provides: " Annually in May or June, or as soon thereafter as may be, the court of each county, when a majority of the acting justices of the county are present, or when the justices have been summoned to attend to act upon the matter, shall make up in its minutes an account of all sums lawfully chargeable on the county, which ought to be paid within one year, stating for what, how much, and to whom such payment is to be made,...
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