United States Fidelity & Guaranty Co. v. Young

• Decision Date: 23 January 1922
• Docket Number: 22295
• Citation: 127 Miss. 725,90 So. 448
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. YOUNG
• Court: Mississippi Supreme Court

90 So. 448

127 Miss. 725

UNITED STATES FIDELITY & GUARANTY CO. v. YOUNG

No. 22295

Supreme Court of Mississippi

January 23, 1922

1. CLERKS OF COURTS. Statutes do not require circuit clerk to receive and receipt for and disburse costs voluntarily paid by litigants.

There is no statute which either expressly or by implication imposes the duty on a circuit clerk to receive and receipt for and disburse to those entitled thereto, costs voluntarily paid to him by litigants against whom the same have been adjudged by the court of which he is clerk.

2. CLERKS OF COURTS. Circuit court clerk's surety not liable to sheriff on bond for costs voluntarily paid by litigants.

In a suit by a sheriff against the surety on the official bond of a circuit clerk, whose bond is conditioned that "he shall faithfully perform the duties of his said office during his continuance therein," to recover court costs belonging to the plaintiff, and received and receipted for by such clerk from litigants in the court of which he is clerk voluntarily paid to him by such litigants, the plaintiff is not entitled to recover against such surety because in so receiving and receipting for such costs such clerk does not act in his official capacity, but only as the agent of the parties paying the same; therefore, there is no liability to the plaintiff because no breach of the condition of the clerk's bond.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Lauderdale county, HON. G. C. TANN Chancellor.

Bill by J. P. Young, former sheriff of Lauderdale county, against W C. Fleming, former clerk of said county, and the United States Fidelity & Guaranty Company, surety on the clerk's official bond. The guaranty company's demurrer to the last amended bill was overruled, and it appeals. Reversed and judgment here for appellant.

Reversed.

Wm. M. Hall and Jacobson & Brooks, for appellant.

If it were not the duty of the clerk to collect the fees or receive the fees due J. P. Young, sheriff, then the appellant here, the United States Fidelity & Guaranty Company, is not liable as surety on the official bond of the said clerk, because there was no breach of the bond. This seems to be agreed upon as the fighting ground in this cause by the appellee, and we concede that it is the only question in the case, and that the case must stand or fall upon this issue in law.

We also, wish to state at the outset that we do not contend that the doctrine of strictissimi juris applies in the construction of the liability on the bond made by a "bond company," who becomes surety on a bond for a consideration, as it does when an individual becomes a surety on a bond for mere accommodation, nor have we used this phrase or these words, nor contended in our brief for that doctrine; but we did say that so far as the bond imposes a liability, it is construed strictly, by which we mean that the liability of sureties on such bonds is not to be extended beyond the terms of their engagement, nor what is under contemplation at the time the bond is made. The very authority that the appellee cites as laid down in 14 R. C. L., at page 47, which is taken from the subject of "Indemnity" begins the next sentence after the one quoted by the appellee, as follows: "However, the liability of an indemnitor is never endangered by mere construction to include a term specially excluded." This sentence, which should follow the quotation of the appellee, was omitted in his quotation, and which we think is pertinent, and should have followed his quotation. In other words, we contend that the liability of the surety is to indemnify to the extent within the terms of the bond and the contemplation of the law which required it to be given, and that it should be strictly construed not to include matters and things beyond this.

Counsel for appellee states that he has no quarrel to make with the law as announced in the case of Matthews v. Montgomery, reported in 25 Miss., at page 150, and which was cited in our original brief, but he tries to nullify that decision as affecting the present case, by stating that the condition of the bond given by Fleming in the present case is different from the conditions of the bond given by the clerk in the Matthews case.

We have made a careful and close investigation, and we do not find that the law in the Matthews case has ever been changed, and is the law of the case at bar today. Taking the conditions of the bond of the clerk of the circuit court out of which the Matthews case arose, and we find as quoted by the appellee on page 4 of his brief, that Hutchinson's Mississippi Code, chapter 27, page 432, is as follows: "Conditioned for the faithful performance of the duties of his office, and that he seasonably record the judgments, decrees, and orders of said court and deliver over to his successors in office, all records, minutes, books, papers, presses, and whatever belongs to said office."

And the condition of the bond of the clerk of the circuit court in this state since 1906, which is set out in section 3463 of Mississippi Code 1906 (section 2891, Hemingway's Code 1917), is as follows: "Therefore, if he shall faithfully perform all the duties of said office during his continuance therein, then the above obligation to be void."

So it will be seen that at the time the Matthews case was decided that the conditions of the bond were exactly the same as it is now.

Referring to page 474 of Hutchinson's Code, and particularly, to sections 2, 3, 4 and 5 thereof, we find that the clerk in that day was required to do the same thing as the clerk is required to do in this day as to fee bills. That is to tax the cost, and to make up and file the bill of cost in his office as a public record when the cause has been determined, which is prescribed by section 969, of Mississippi Code of 1906 (Section 674, Hemingway's Code 1917.)

In fact, the duties of the clerk, so far the collection of cost, of other officers, were the same at the time the Matthews case was decided as they are today. As cited in our original brief, the clerk is not the collecting officer for any other officers of the court, and it is no part of his duties to collect or receive fees due other officers of the court. It is the sheriff who collects under execution, and who is required to collect the fees of other officers. We contend that the law is settled in this, and that it being no part of his official duties to collect fees due the sheriff, and that question alone being the gravaman of this bill of complaint against the appellant here, that if this court is committed to that view, then the demurrer should have been sustained. There is not a word in any of the books or statutes that defines among the duties of a circuit clerk that of collecting fees due the sheriff.

The case cited by the appellee, to-wit: Lewis v. State, reported in 4th Southern, at page 429, is not in point, nor in the appellee's favor, because in that case it was shown that the clerk issued, at various times, divers and sundry false and fraudulent witness certificates, and put them in circulation, and that the same were accepted as genuine and paid by the county. It is undoubtedly the duty of the clerk to issue witness certificates. No one else could issue them, and it is the law today in this state that the clerk should issue witness certificate. No one else could issue witness certificates, and when he falsely and fraudulently did that, he did not faithfully perform his duties to the county; his principal, and his acts were the false and fraudulent acts of the county's agent, and undoubtedly his bond as clerk covers this liability. The court in that decision held that it was his duty to do those things, and held the bondsman liable, because he acted wrongfully, or violated his duty in defrauding the county as he did, and, thus breached his bond. This case is not applicable as an authority in the present case, for the reason that in the Lewis case it is clear that the clerk breached his bond in failing to perform a duty of his office, while in the present case the clerk is charged with breaching a duty, which is not a duty of his office. In the Lewis case the court referred to the case of Furlong v. State, 58 Miss. 717, and that case held plainly that no action can be brought on an official bond for any misfeasance of the officer which is not included within the terms of the condition of the bond, or in the contemplation of the law requiring the bond, that is the very contention of the appellant in this case that the bill of complaint herein cannot be maintained against the appellant, because it attempts to hold the appellant liable on an alleged misfeasance of the officer, which is not included within the terms of the condition of the bond, or in the contemplation of the law requiring the bond. Certainly, the surety on the official bond has a right to reasonably expect that when he becomes a surety on a bond, that he will not be held liable for any misfeasance of the officer not contemplated by law, nor included within the terms of the condition of the bond; and, thus, it is, that the appellant in this case has a right to take into consideration the established law of the land as laid down by the supreme court in what is included in the terms of the condition of the bond in which it entered into. Again, we especially call the court's attention to the case of United States Fidelity & Guaranty Co. v. Yazoo City, 116 Miss. 358, one authority cited by the court therein as being conclusively in favor of appellant here.

We respectfully submit, as is more fully shown in our original brief, that the charge against the clerk, Fleming, in receiving fees belonging to Sheriff Young, which he did not turn over to Sheriff Young, that no...