Stinson v. Board of Supervisors

• Decision Date: 19 September 1929
• Citation: 153 Va. 362
• Parties: J. H. STINSON, JOHN H. LESTER, GREEN CHARLES, H. G. CHARLES, JOHN H. DOTSON AND ALICE WALDRON v. BOARD OF SUPERVISORS OF BUCHANAN COUNTY AND E. E. SMITH, TREASURER OF BUCHANAN COUNTY.
• Court: Virginia Supreme Court

Page 362

153 Va. 362

J. H. STINSON, JOHN H. LESTER, GREEN CHARLES, H. G. CHARLES, JOHN H. DOTSON AND ALICE WALDRON v. BOARD OF SUPERVISORS OF BUCHANAN COUNTY AND E. E. SMITH, TREASURER OF BUCHANAN COUNTY.

Supreme Court of Virginia, Staunton.

September 19, 1929.

Absent, West, J.

1. PUBLIC OFFICERS — Official Bonds — Bond Valid though Terms of Statute not Strictly Complied with — Section 2698 of the Code of 1919 — Case at Bar. — Statutory bonds of public officers are not invalid merely because the terms of the statute have not been strictly complied with, unless the statute expressly declares that the failure to comply with it in any particular shall render the bond invalid. In the instant case, a suit against sureties on a treasurer's bond, as section 2698 of the Code of 1919, under which it was claimed by appellants that the bond in question was given, did not expressly make the bond void in case of failure to observe the statute, the bond was valid.

2. PUBLIC OFFICERS — Official Bonds — Defective Statutory Bond Good as Common Law Obligation. — A bond given for the faithful performance of official duties, or in pursuance of some requirement of law, may be valid and binding upon the parties as a voluntary or common law obligation, when not made with the formalities or executed in the mode provided by the statute under which it purports to have been given, and hence is not enforceable as a statutory bond, provided it is not in violation of law.

3. PUBLIC OFFICERS — Official Bonds — Defective Statutory Bond Good as Common Law Obligation — Reason for the Rule. — The rule that though the bond of a public officer may be defective, yet it may be a good common law obligation, rests on the principle that, notwithstanding the instrument may not conform with the special requirements of a statute or regulation in compliance with which the parties executed it, nevertheless it is a contract voluntarily entered into upon a sufficient consideration, for a purpose not contrary to law, and therefore is obligatory on the parties to it in like manner as any other contract or agreement at the common law; and on the further principle that the sureties, having by their act in executing the instrument enabled their principal to obtain the office, are estopped to deny their liability for his official acts.

4. PUBLIC OFFICERS — Official Bonds — Personal Rather than Corporate Surety — Sections 2698 and 2777 of the Code of 1919 — Common Law Obligation — Case at Bar. — The instant case was a suit against sureties on a county treasurer's bond. Appellants, the sureties, claimed that the bond should have been executed strictly in accordance with section 2698 which requires corporate surety, whereas appellees claim that the bond was not executed under section 2698 of the Code of 1919, but under section 2777 which they construed to permit the giving of personal surety.

Held: That it was immaterial in the instant case whether the bond should have been executed strictly in accordance with section 2698 of the Code of 1919 or whether section 2777 should be construed to permit the giving of personal rather than corporate surety, as in any event it was perfectly valid as an obligation to secure the faithful performance of the treasurer's official duties.

5. PUBLIC OFFICERS — Official Bonds — Suit Against Sureties — Time of Filing Answer — Case at Bar. — The instant case was a suit on the official bond of a county treasurer in which a decree was entered establishing the liability of the treasurer and his sureties. The treasurer's successor filed his petition in the case demanding the settlement of the amount clearly due by the former treasurer as found in this decree. The defendants filed their joint answer to this petition nearly a year after the case had been pending, reiterating the principal defenses made by them in their answer to the original bill. Thus, nearly twelve months after the original bill had been filed they made the defense that the former treasurer was in default for a large sum when the bond in question was executed. The court struck out this answer to the new treasurer's petition, refusing to treat it as an amended and supplemental answer to the original bill.

Held: Under section 6122 of the Code of 1919, requiring answer to be filed in equity within six months, that as this answer was not tendered and the additional defense thereby interposed was not made for nearly a year and not until after the liability of appellants had been determined by decree, there was no error in this action of the court.

6. PUBLIC OFFICERS — Official Bonds — Two or More Bonds — Release of Surety on First Bond — Case at Bar. — The instant case was a suit on the bond of a county treasurer. Sureties on the bond claimed that a former surety was liable for a part of the defalcation of the principal. The former surety was not a party to the present litigation and if it be possible for a surety ever to establish conclusively that his obligation as surety has ceased, and that his principal has made a settlement, this record shows that there is no further obligation on the surety under the first bond. The only matter which could be admitted to attack such a formal settlement as that which is shown by the record to have been made by the treasurer with the board of supervisors under the first bond, would be actual fraud or palpable mistake, and there is no suggestion of this in the record.

7. PUBLIC OFFICERS — Official Bonds — Two or More Bonds — Sureties on the Third Bond the Same as that on the Second with the Exception of one Insolvent — Case at Bar. — In a suit on the third bond of a treasurer it was suggested that part of the treasurer's liability should be imposed upon the sureties on a second bond given by the treasurer. The sureties on the two bonds were identical, with the exception of one, and it was shown without contradiction that that surety was insolvent; therefore, it was immaterial whether the liability was imposed on the sureties on the second bond or on the sureties on the third bond.

8. EQUITY — Reopening Pleadings when Case is Ready for Final Decree where Parties had an Opportunity to be Heard — Case at Bar. — In the instant case, a suit on a county treasurer's bond against the treasurer and his sureties, appellants, the sureties, contended that they had the right, when the case was ready for a final decree, to reopen the pleadings and interpose new defenses, together with all the former defenses. A sufficient answer to the contention of appellants is that they had previously had their day in court with an opportunity to be heard, fully and completely, and that no good cause was shown for reopening the pleadings at that stage of the litigation.

9. PUBLIC OFFICERS — Official Bonds — Liability of Sureties — Defaults after Execution. — The sureties on the latest bond of a public officer are only liable for defaults which occur after the execution of the bond.

10. PUBLIC OFFICERS — Official Bonds — Liability of Sureties where Officer has Given Several Bonds — Sureties on Final Bond Prima Facie Liable. — Where an officer fails to account for and pay over to his successor the funds chargeable to him as shown by his books and final account, the sureties on the last bond are prima facie liable therefor, and, to relieve themselves, they must show that the defalcation in fact occurred prior to the execution of the final bond.

11. PUBLIC OFFICERS — Official Bonds — Presumptions and Burden of Proof — Burden on Surety to Show Misappropriation before He became Liable. — The presumption is that money which is shown to have come into the officer's hands and should have been there continues in his possession, and the burden of proof is on the surety to show that the funds presumably in the hands of his principal had been misappropriated before the surety became liable on the bond.

12. PUBLIC OFFICERS — Official Bonds — Liability of Sureties where Officer has Given Several Bonds — Shortage Shown to Exist at a Certain Time. — A shortage shown to exist at a certain time in an officer's funds will, in the absence of proof to the contrary, be presumed to have arisen on account of defalcations occurring during the term of office covering such period, and not to include shortages occurring in previous terms.

13. PUBLIC OFFICERS — Official Bonds — Liability of Sureties where a Settlement has been made and Surety on First Bond Released — Case at Bar. — The instant suit was against a county treasurer and his sureties on his official bond. There had been a settlement and a release of the surety on a prior bond of the treasurer and a new bond given by the treasurer with defendants as sureties.

Held: That the presumption was that the defalcation in question in the instant case arose after this settlement and release of the prior surety and during the time for which the sureties on the later bond were liable.

14. PUBLIC OFFICERS — Official Bonds — Liability of Sureties — Penalties — When Recovery would Certainly be as Great as that Complained of if Case was Reopened — Case at Bar. — The instant case was a suit against a county treasurer and his sureties on his official bond. The trial court decreed that the principal and sureties were liable on the bond. The Supreme Court of Appeals was of the opinion that no injustice could possibly be done to the sureties by affirming this decree, for even had they been able to show that any portion of the recovery against them as sureties of the treasurer should have been deducted because of their belated claim that a portion of the defalcation may have occurred before the bonds on which they were sureties were executed, it is perfectly apparent that there is nevertheless quite a large liability which clearly arises under the two bonds on which they are the sureties; so that if, under the processes of law they should now be permitted still further to delay a settlement, the penalties recoverable under Code 1919,...