Sunflower Compress Co. v. Clark

• Decision Date: 26 March 1934
• Docket Number: 31133
• Citation: 153 So. 823,172 Miss. 256
• Court: Mississippi Supreme Court
• Parties: SUNFLOWER COMPRESS CO. v. CLARK et al

153 So. 823

172 Miss. 256

SUNFLOWER COMPRESS CO. v. CLARK et al

No. 31133

Supreme Court of Mississippi

March 26, 1934

Division A

Suggestion Of Error Overruled April 1, 1935.

APPEAL from the circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Suit by the Sunflower Compress Company against Arthur B. Clark and the United States Fidelity & Guaranty Company. The trial court sustained the company's demurrer to the declaration. From a judgment for the other defendant plaintiff appeals. Reversed and rendered.

See, also, 165 Miss. 219, 144 So. 477, 145 So. 617.

Reversed, and judgment here for appellant.

Frank E. Everett, of Indianola, for appellant.

It is our contention that the court was in error in permitting the surety, the United States Fidelity & Guaranty Company, to file a separate demurrer to the declaration after it had joined in a joint demurrer with the other defendant. If this were not true, there would scarcely be an end to the filing of demurrers where there were more than two defendants. They could file a joint demurrer and upon its being overruled, one defendant could demur separately and the others jointly and so on until they had all demurred separately.

The sheriff and his official bond are liable in an action for damages in a civil suit which arises from the intentional or negligent act of the officer.

Johnson v. Cunningham, 65 So. 116; 22 R. C. L. 496, par. 176; 24 R. C. L. 961, par. 55.

We say that the acceptance of a check for taxes and the issuance of an official tax receipt is an official act and the negligent failure of the tax collector to present the check for payment within a, reasonable time and especially where his failure to present the check is for his own convenience in making settlement with the state auditor and not only renders him liable to the plaintiff, but renders his official bond liable also. Therefore, the demurrer to the amended declaration especially should have been overruled.

A peremptory instruction should have been given the plaintiff.

144 So. 478; Fortner v. Parham, 2 S. & M. 151; Moritz v. Nicholson, 106 So. 762, 141 Miss. 531; Sunflower Compress Company v. Clark, 144 So. 477; 8, C. J. 540; 5 R. C. L. 509; 7 Cyc. 977; 5 R. C. L. 513, par. 34; Edmisten v. Herpolsheimer, 92, N.W. 138; 2 C. J. 722; Moore v. Gholson, 34 Miss. 372; Lampley v. Scott, 24 Miss. 528.

Neill & Clark, of Indianola, for appellees.

Courts of law are organized for the purpose of trying causes upon their merits, and only in exceptional cases should the trial court refuse to permit amendments of pleading or proceeding.

Bishop v. Fennerty, 46. Miss. 570; Greenwood Groc. Co. v. Bennett, 101 Miss. 573.

The contract of the surety can extend only to such duties of the tax collector as are prescribed by law, or such duties as are in contemplation of the law which requires the bond to be given.

Brown v. Phipps, 6 S. & M. 51.

It is true that the issuance of the tax receipt was an official act, but the acceptance of the check not being a duty prescribed by law, or in contemplation of the law is merely an incident to the duty to issue a tax receipt, and could not be covered by the contract of the surety, which only guarantees the faithful performance of the duties of the tax collector.

Furlong v. State, 58 Miss. 717; 46 C. J. 1068.

It is undoubtedly the law in Mississippi that a tax collector is under no official duty whatsoever to accept a check in payment of taxes.

Moritz v. Nicholson, 106 So. 762; Fortner v. Parham, 2 S. & M. 151; 7 Cyc. 977, 978; Koones v. District of Columbia, 54 Am. Rep. 278.

It is true that every defense not merely consisting of a denial of the allegations of the declaration must be pleaded specially, or notice thereof given under the general issue, but it is also true that every defense which is founded on a denial of the allegations of the declaration may be made under the plea, of the general issue.

Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459, 461; Williams v. Delta Gro. & Cotton Co., 132 So. 734.

The rule here is not as counsel insists, one which required a presentation of the check within the next business days, as is applicable in ordinary transactions, but a simple plain rule of agency must govern.

2 C. J. 720, sec. 381; Sunflower Compress Co. v. Clark, 145 So. 617, 716.

OPINION

McGowen, J.

This is a suit by the Sunflower Compress Company to recover from the sheriff and tax collector of Sunflower county, Clark, and the surety on his bond, the amount of a check which the sheriff failed to present to the bank before it closed for business, thereby causing loss to the compress company. This is the second appearance of this case here, having been here on the pleadings in the case of Sunflower Compress Company v. Clark, 165 Miss. 219, 144 So. 477, 145 So. 617, wherein we held that the declaration in the, case was good against demurrer.

After the reversal of the case, the lower court permitted Clark and the surety to file separate demurrers to the declaration. The court overruled the demurrer filed by Clark and sustained that of the surety company; thereupon the compress company amended its declaration, and more specifically alleged that the act of receiving the check was an official act by Clark as sheriff of the county. When the declaration was amended, the separate demurrers were again interposed, with like results. As between the compress company and Clark, there was a trial of the case on the merits, which resulted in a verdict for appellee Clark.

On the 12th of December, 1931, the Sunflower Compress Company had on deposit in the Bank of Indianola, two blocks from the sheriff's office, one thousand four hundred seventy-four dollars and ninety-nine cents. The compress company desired to pay its taxes then due, and presented to the sheriff and tax collector of the county a check on the Bank of Indianola for nine hundred fifty dollars, and received from him its tax receipts. Clark did not present the check to the Bank of Indianola, two blocks away in the same town, but on December 14th mailed this check to the Jackson State National Bank at Jackson, Mississippi, for deposit and collection. The Bank of Indianola was open for business on the 12th, 14th, and 15th of December, but on the morning of the 16th it did not open for business, and went into the possession and control of the state banking department, and since that date has not reopened. December 12th was Saturday.

At the time of the trial of the case on the facts, on September 18 1933, the compress company had received from the liquidation of the bank about eighty-eight...