State v. Wallis

• Decision Date: 17 December 1892
• Citation: 20 S.W. 811,57 Ark. 64
• Parties: STATE v. WALLIS
• Court: Arkansas Supreme Court

20 S.W. 811

57 Ark. 64

STATE v. WALLIS

Supreme Court of Arkansas

December 17, 1892

Appeal from Scott Circuit Court, EDGAR E. BRYANT, Judge.

In 1885 the Attorney General, under the provisions of ch. 103 of the Acts of 1885, employed W. W. Wallis as attorney on behalf of the State to collect amounts due the sixteenth section school fund in Scott county. Before the notes and accounts belonging to the fund were delivered to him, Wallis executed to the State a bond conditioned for the faithful keeping, collecting and accounting for the school fund, as follows:

"STATE OF ARKANSAS, COUNTY OF SCOTT.

Know all men by these presents: That I, W. W. Wallis, as principal, and J. C. Gilbreath, Free Malone, John Rawlings C. Malone, Daniel Hon and Catherine Gilbreath, as securities are jointly and severally held and bound unto the State of Arkansas, in the sum of seven thousand, seven hundred and eighty-one dollars and fifty-one cents ($ 7,781.51), the payment of which well and truly to be made we bind ourselves our heirs, executors and administrators, firmly by these presents. Witness our hands and seals this 14th day of July A. D. 1885.

The condition of the above obligation is such that whereas, etc [giving the conditions of the bond].

[Signed]

W. W. WALLIS,

DANIEL HON,

FREE MALONE,

C. MALONE,

JOHN RAWLINGS."

Neither J. C. Gilbreath nor Catherine Gilbreath, whose names appear in the body of the bond, signed it. After the signatures follow the several affidavits of the persons named in the bond as sureties, in the following order: John Rawlings, Free Malone, C. Malone, Catherine Gilbreath, Daniel Hon, J. C. Gilbreath. The affidavit of Gilbreath is as follows:

"STATE OF ARKANSAS, COUNTY OF SCOTT.

I, J. C. Gilbreath, do swear that I am worth three thousand, three hundred and thirty-one and 52-100 dollars in property, in Scott county, State of Arkansas, subject to execution over and above all my debts and liabilities and exemptions under existing laws, as follows:

Pt. sw 1-4 sw 1-4 sec. 21, tp. 3 N., r. 29 W., (brick block) worth $ 3331.52-100.

[Signed]

J. C. GILBREATH.

Sworn to before me this 14th day of July, A. D. 1885.

M. M. BEAVERS,

[SEAL.]

Notary Public.

Upon the back of the bond is indorsed the following, to-wit:

"Approved this 16th day of July, 1885.

R. B. RUTHERFORD,

Judge Twelfth Judicial Circuit of Arkansas."

On the 13th of June, 1890, the State brought this action for the use of the school fund, alleging that Wallis had embezzled and converted to his own use the sum of $ 1354.50. J. C. Gilbreath having previously died, his administrator, together with the principal and the other sureties, was made a defendant.

The administrator of J. C. Gilbreath filed an answer, on the 7th day of August, 1890, in which he alleged, by way of defense, that it was not true that said J. C. Gilbreath at any time signed, executed or delivered the bond sued on as the surety of the said W. W. Wallis, or otherwise.

On the same day the defendants, Rawlings, Hon, Free Malone and C. Malone, filed their joint answer, in which the following defense was set out: That, at the time they signed said bond, they were severally approached by the said W. W. Wallis, who requested them to sign said bond as sureties, and stated to them that he would, before delivery of said bond, also procure as additional sureties J. C. and Catherine Gilbreath, whose names were at the time written in said bond; and so the defendants say that, relying upon the promises and statements of the said Wallis, as aforesaid, they signed the bond upon the condition that, before the same should be delivered or become effective, it should be signed by J. C. and Catherine Gilbreath as sureties, and that they would not have signed said bond except upon the condition that J. C. and Catherine Gilbreath should also become sureties thereon. And defendants say that, upon condition alone that said bond should not be delivered to plaintiff until J. C. and Catherine Gilbreath had become sureties thereon, did they sign, and that neither J. C. nor Catherine Gilbreath ever signed or became a surety upon said bond.

The case was submitted to the court upon the following evidence:

It was admitted by both parties in open court that defendant, W. W. Wallis, was, by the Attorney General of the State of Arkansas, Dan. W. Jones, appointed in 1885 as attorney to collect and transmit the funds pertaining to the sixteenth section school lands in Scott county; that W. W. Wallis, as such attorney, collected of the money arising from said funds the sum of $ 1706.50, and of that sum the said W. W. Wallis failed to pay over the sum of $ 1354.50; that said amount still remains unpaid and owing to the plaintiff; that the signatures of all of the defendants to the bond, and jurat and affidavits to the bond, were the genuine signatures of the parties therein mentioned.

John Rawlings testified as follows: "Wallis came to me and told me that he had received the appointment as attorney for the sixteenth section school fund, and would have to make bond, and told me the amount of it, and named the parties who would go on the bond with him, to-wit: J. C. Gilbreath, Daniel Hon, C. Malone, Freeman Malone and Catherine Gilbreath. He said that the Gilbreaths would make the principal part of the bond. I mean by the Gilbreaths, J. C. Gilbreath, L. D. Gilbreath and Catherine Gilbreath, wife of L. D. Gilbreath. When the bond was signed, Mr. M. M. Beavers, notary public, brought the bond around for me to sign. I don't know whether Wallis was present or not. I don't remember of any conversation at this time, but I saw the names of the parties I was told would sign were mentioned in the bond and part of them had signed it, and I signed it. In my first conversation, I told Wallis that I had some objections to going on the bond, but when he told me who would sign it I consented to sign the bond."

Freeman Malone, Daniel Hon and C. Malone testified to substantially the same effect as John Rawlings, with reference to the circumstances under which they signed the bond.

Each of the above witnesses admitted and testified that he knew that Catherine Gilbreath was a married woman at the time of the execution of the bond. It was also in evidence that J. C. Gilbreath, whose jurat is attached to the affidavit of Catherine Gilbreath, is the same J. C. Gilbreath mentioned in the body of the bond, and the same who made affidavit to the bond and signed his own name to the affidavit.

Each of the witnesses for the defense testified that they never saw the bond after it was signed by them; that they never consented that the bond should be delivered without the signature of J. C. Gilbreath, and would not have signed the bond had they not been assured by Wallis that J. C. Gilbreath would sign it as surety with them.

This was all the evidence in the case.

The court found the facts to be as follows:

That the copy of the bond, and the affidavits thereto, exhibited with the complaint, is a true copy of the bond sued on, and that said bond and affidavits were signed by the parties in the manner and form as shown by said copy; that John Rawlings, C. Malone, Free Malone and Daniel Hon, each and all, signed said bond on condition that the principal, W. W. Wallis, should procure the signature of J. C. Gilbreath thereto, and that they did not know that the bond was delivered without that signature, and did not consent to such delivery; that Catherine Gilbreath was, at the time of the execution of said bond, and is now, a married woman.

Upon these facts the court declared the law to be:

1. That the signatures of J. C. Gilbreath and Catherine Gilbreath to the affidavits, without evidence to the effect that they thereby intended to sign the bond, will not be legally construed to be signatures to the bond.

2. That the face of the bond was sufficient to put the obligee upon inquiry as to the reason for the absence of the Gilbreaths' signatures, and that the delivery of the bond without the signature of J. C. Gilbreath effected no contractual relation between the obligee and the obligors who had signed it; and that the second section of the act of March 17, 1891, cannot retrospectively raise that relation, for to thus give a retroactive effect to that statute would be to create a contract between the parties that they did not enter or intend to enter into, or at least it would have the effect to increase the liability of the obligors who signed the bond beyond what was contemplated by the agreement that they did enter into.

3. That, at the time of the filing of the defendant's answer herein, the issues as made up presented a good defense in bar to the action, and that the right of defense on the issues joined cannot be divested by the subsequent action of the legislature, for by that action the defense already invoked by proper answer, not demurrable at the time of filing, is entirely taken away, and not merely changed and modified in its manner of presentation.

The court adjudged that the complaint be dismissed, and that defendants recover their costs. The State has appealed.

Judgment affirmed.

James B. McDonough and W. E. Atkinson, Attorney General, for appellant.

1. Judgment should certainly have been against Wallis, the principal. Black on Judg. sec. 23, p. 30 and cases cited.

2. The conclusion is inevitable that the Gilbreaths intended to execute and did execute the bond. The whole paper is one instrument, and each signed their signature to the paper. The place or point where the signature appears is immaterial--if the signer intended to execute the instrument. See. 7 Jones L. (N. C.) 510; 12 Allen, 138; 3 H. & U. (Va.) 144; 115 Mass 586; 1 Ves. Sr. 6; 7 Wend. 345; 64 Me. 35. Gilbreath in...