Town Of Parsons v. Petitioner

• Decision Date: 08 April 1899
• Citation: 46 W.Va. 334
• Court: West Virginia Supreme Court
• Parties: Town of Parsons v. Miller et al.

46 W.Va. 334

Town of Parsons

v.Miller et al.

Supreme Court of Appeals of West Virginia.

Submitted February 1, 1899

Decided April 8, 1899.

1.Evidence Municipal Corporations Records.

The corporation books concerning the government of a city, town, or village, when they have been publicy kept, and the entries have been made by a proper officer, as well as duly-authenticated copies therefrom, are admissible evidence of the facts witnessed in them. (p. 336.)

2.Official Bond Sureties' Liability.

Sureties on an official bond are liable for money in the hands of their principal at the date of the bond, provided such money form a part of the fund which the bond was intended to secure, and came to the hands of the principal obligor in the course of a precedent term of office or employment. If they make the defense that the money was collected or otherwise came into the hands of the principal before the execution of the bond, it is incumbent upon them to show also that it was misapplied before that time. (p. 338.)

Error to Circuit Court, Tucker County.

Action by the town of Parsons against M. V. Miller and others. Judgment for defendants, and plaintiff brings error.

Reversed.

W. B. Maxwell and A. J. Valentine, for plaintiff in error.

L. Hansford, for defendants in error.

McWhorter, Judge:

The town of Parsons brought its action before M. F. Lipscomb, a justice of Tucker County, against M. V. Miller, late sergeant of the town, and S. A. Moore and L. M. Austin, sureties on his official bond, and filed an account, as bill of particulars, against the defendants, by name, as indebted to the town of Parsons, "on account of money had and received by safd M. V. Miller, late town sergeant (on official bond), $300.00," and filed the following notice: "Parsons, W. Va., Nov. 10, '96. At a meeting of the town council of Parsons held November 9th, 1896, the following motion wan made and carried: 'On motion, it is ordered that M. V. Miller, late sergeant of this town, do pay over to L. H. Layten, the present sergeant, all money due the town from him as late town sergeant, and that L. H. Layten, town sergeant, is directed to present a copy of the above order to the said M. V. Miller, and demand immediate payment. F. M. Kelly, Eecorder. Wm. G. Conley, Mayor.' Executed the within notice by delivering to the withinnamed M. V. Miller a true copy hereof this the tenth day of November, 1896. L. H. Layten, Town Sergeant." The defendants made no answer either oral or in writing. The justice heard the case, and rendered judgment for plaintiff for eighty-six dollars and fifty-eight cents, with interest and costs. Plaintiff appealed from this judgment to the circuit court. On the 12th of March, 1898, a jury was impaneled to try the case; the plaintiff introduced its evidence, to which evidence the defendants demurred, and in which plaintiff joined; the defendants offered no evidence; and under the direction of the court the jury returned the following verdict: "If the law be for the plaintiff, then we, the jury find for the plaintiff, and assess its damages at $249.50; but, if the law be for the defendants, then we find for the defendants." The court took time to consider of the demurrer, and on the 21st day of June, 1898, entered an order sustaining the demurrer, and giving judgment for defendants for costs. In the course of the trial, plaintiff took three several bills of exception, which were duly signed and made a part of the record. The plaintiff sued out a writ of error, and assigns as error the refusal of the court to permit plaintiff to give in evidence the settlement referred to in, and made part of, the first bill of exceptions, which says 'that upon the trial of this case a settlement made with M. V. Miller as town sergeant, dated on the 31st day of August, 1895, in the words and figures following, to wit, was offered to be introduced in the evidence of C. W. Minear: 'The finance committee submitted the following report, ending Aug. 1st, 1895: M. V. Miller, Sergeant, Dr., ' " then proceeds Jo give a number of items under the "Dr." column and a number under the "Cr." col- umn and striking a balance and signed "J. R. Seiler M. H. Godwin R. F. Rightmire Committee." To the introduction of which defendants objected and the objection was sustained, and exception taken. There is nothing to connect this report in any manner with the reccnds of the town council. It does not purport to be a part of the record of plaintiff, or a copy fom its minutes; and, while the bill of exceptions says it "was offered to be introduced in the evidence of C. W. Minear," the only evidence found in the record of any "Minear" is the following, without caption or closing interjected into a deposition of witness Howard Shaffer: "Mr. Minear: Q. What office do you hold? A. Recorder of the town of Parsons. Q. What is this book? A. Record Book." With nothing more to show its connection with the case, it was properly rejected as evidence.

The second assignment is for error in refusing to permit plaintiff to give in evidence the settlement referred to in, and made a part of bill of exception No. 2, introduced and offered as evidence with the evidence of R. F. Rightmire. The evidence offered was a settlement made with M. V. Miller, town sergeant from the 1st day of...