United States Fidelity & Guaranty Co. v. Adams County

• Decision Date: 13 October 1913
• Docket Number: 16151
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. ADAMS COUNTY
• Court: Mississippi Supreme Court

63 So. 192

105 Miss. 675

UNITED STATES FIDELITY & GUARANTY CO. v. ADAMS COUNTY

No. 16151

Supreme Court of Mississippi

October 13, 1913

APPEAL from the chancery court of Adams county, HON. J. S. HICKS Chancellor.

Suit by Adams county against the United States Fidelity & Guaranty Company. From a decree for complainants, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Gerard Brandon, for appellant.

As to the first assignment of error: The court erred in not rendering a decree dismissing the bill of complaint, for the reason that appellee, Adams county, had no right of action under the official bond of R. S. Dorsey, as police justice is not a party thereto, nor a beneficiary thereunder. Patty v. Williams, 71 Miss. 837 (15 So. 43.).

As to the second assignment of error: The court erred in not rendering a decree dismissing the bill of complaint for the reason that the city of Natchez (of which Dorsey was an official and to which said bond was payable), had already sued and recovered a judgment for breaches of said bond against the appellant United States Fidelity & Guaranty Company, for the full amount of all that was demanded, to wit, three hundred and forty-seven dollars and sixty-eight cents, which judgment appellant paid and satisfied, and that thereby appellant's liability on said bond became res judicata and was satisfied. In support of our contention we cite the case of State for Use, etc., v. Morrison, 60 Miss. 81.

As to the third, fourth and fifth assignments of error: Third, the court erred in rendering a decree in favor of Adams county and against United States Fidelity & Guaranty Company, for any amount whatever on the official bond of R. S. Dorsey as police justice of the city of Natchez, for the reason that said bond on its face and by its terms and the intentions of the parties was intended to cover and in fact did cover only the obligations and duties of said Dorsey as police justice of the city of Natchez, and not of an ex-officio justice of the peace of Adams county, and said bond created no legal liability whatever on the part of said surety to said Adams county.

Fourth the court erred in rendering any decree in favor of appellee and against said appellant for any amount, for the reason that the bond sued on is not the bond of R. S. Dorsey ex-officio justice of the peace of said Adams county, but is the bond of said R. S. Dorsey as police justice of the city of Natchez only.

Fifth, the court erred in rendering any decree in favor of appellee and against the appellant, upon the bond sued on, for the reason that any breach of duty by said R. S. Dorsey when assuming to act as an ex-officio justice of the peace was not a breach of any condition expressed, implied, or legally arising out of the bond sued on given by him as police justice of the city of Natchez. Kiessig v. Allspaugh, vol. 13, p. 418 of Lawyers' Reports Annotated, Old Series; Miller v. Stewart, 22 U.S. 9 Wheat (6 L. Ed.), 195; Anderson, Law Dict. Title, Surety. See, also, McKay v. McDonald, 5 Ala. 388; Granite Bank v. Ellis, 43 Me. 367; Reed v. Varvin, 12 Serg. & R. 100; Ludlow v. Simond, 2 Cai. Cas. 38; National Mechanics Bkg. Asso. v. Conkling, 90 N.Y. 116; Birckhead v. Brown, 5 Hill 635; McCluskey v. Cromwell, 11 N.Y. 598; Lipscomb v. Postell, 38 Miss. (9th Geo.) 476.

It may be contended that the effect of decision in the case of State v. Martin has been weakened by the later case of Adams v. Williams, 97 Miss. 113. But this latter case only affects the Martin case to the extent that it holds it would be immaterial whether the officer signs or fails to sign his bond as principal where the surety signs and the bond was delivered. In other words, our court now holds that an informally executed bond under our present statutes, is just as good as if the formal execution was perfect. But the rule strictissimi juris has not been changed nor as we interpret the cases, is it held that any further liability upon the surety is created than is warranted by the language of the bond itself. Hall v. State, 69 Miss. 529 (So. 38).

As to the sixth, seventh and eighth assignments of error: Sixth, the court erred in rendering the decree in favor of appellee and against defendant, which was at the time excepted to and is now appealed from, because said decree was contrary to the law, the facts and the evidence.

Seventh, the court erred in admitting over objections and exceptions of appellant hearsay testimony, as fully shown and set forth in official stenographer's notes, part of record in this case, and constituting bill of exceptions and here referred to.

Eighth, the court erred in admitting and considering, over appellant's objection, hearsay testimony of alleged admissions of R. S. Dorsey, contrary to the interest of appellant, because neither said Dorsey nor his administrator is a party to this suit nor interested in same, and because said Dorsey did not give said bond as ex- officio justice of the peace.

Appellant contends that no evidence should have been admitted as to the acts of Dorsey as ex-officio justice of the peace, under the pleadings in the case and because appellant was not surety for the faithful performance of acts as justice of the peace.

If liable at all, the best and only proper evidence of the fact that he tried cases as ex- officio justice of the peace was his docket, which was offered in evidence. It appears that the only state cases appearing on this justice of the peace docket are one against Conti in which a fine of five dollars was imposed and the one against--with a fine of one dollar. This is all, if anything, that under the evidence should be recovered from the surety company; for no other cases sued on appear on his docket.

It was not proper over appellant's objection to admit evidence of admissions of collections of money made by Mr. Dorsey, although against his interest and against the interest of appellant, for neither Mr. Dorsey nor his administratrix are being sued nor is before the court. To have made such admission (if made) admissible the administratrix should have been made a party defendant with the surety company. In the case of Montgomery v. Billingham, 3 S. & M. 647, the principal and surety were both made defendants, and it was held "that the admission of a maker of a joint note is evidence against his comakers in a suit against 'all,' especially where there is no severance in pleading," and, so also, "where several persons are sued as joint obligors on a bond and a bill of discovery is filed against one of them and is answered." It is plainly intended that the party making the admission must also be a party defendant to the suit. The rule of evidence relied on by appellee in Wigmore on Evidence, No. 1474, is not inconsistent with this view.

W. C. Martin, W. C. Bowman and Wilmer Shields, for appellee.

The first assignment of error recites that "the court erred in not rendering a decree dismissing the bill of complaint for the reason that appellee, Adams county, had no right of action under the official bond of R. S. Dorsey, as police justice, is not a party thereto, nor a beneficiary thereunder."

In this assignment of error and throughout the entire brief of counsel for appellant, only one real argument is made and one point relied on by them and that is that this bond was given for the purpose only of protecting the city of Natchez against any shortage by R. S. Dorsey in the performance of his duties as police justice proper, and was not intended or given for the purpose of protecting the county of Adams against any shortage by him in the performance of his duties as ex-officio justice of the peace for the county of Adams, within the limits of the city of Natchez. Other assignments of error are made, but this is the real question involved.

In our judgment, there is no merit to this contention. Dorsey was duly elected police justice under said charter amendment, and qualified in accordance therewith, taking the oath of office and entering into bond in the sum of two thousand dollars, for the faithful performance of the duties of said office. Among the duties imposed upon him as police justice, under the provisions of said charter amendment, was that he should have and exercise all the duties of a justice of the peace for the county of Adams, within the limits of the city of Natchez. Adams county did not create the office, and had no part in the provision that he should act as such justice of the peace. Dorsey did not elect to be empowered with the duties of a justice of the peace, in addition to his duties as police justice proper of the city of Natchez, but as an inseparable part of the said charter amendment he was, upon qualifying as a police justice, empowered and obligated to act both as a police justice proper and as an ex-officio justice of the peace. He was elected to the office, and these duties were those pertaining thereto. Mechem on Public Officers, No. 285 (1890).

As to the second assignment of error by counsel for appellant: It is argued that because the city of Natchez brought suit on said official bond of R. S. Dorsey at the November Term, 1911, of our circuit court in Adams county, and recovered a judgment against appellant for the sum of three hundred and forty-seven dollars and sixty-eight cents for a shortage of funds belonging to the city of Natchez and collected by him in his official capacity as police justice proper of the city of Natchez, that this is res judicata as to the county of Adams, and that appellee is thereby estopped from bringing this suit.

Can it be successfully contended that a cause of action brought by an injured party against sureties on a bond can in any manner interfere with the bringing of another cause of...