Walton v. Jones

• Decision Date: 12 September 1891
• Court: Utah Supreme Court
• Parties: ANDREW J. WALTON, AND OTHERS, RESPONDENTS, v. ELISHA W. JONES, AND OTHERS, APPELLANTS

27 P. 580

7 Utah 462

ANDREW J. WALTON, AND OTHERS, RESPONDENTS, v. ELISHA W. JONES, AND OTHERS, APPELLANTS

Supreme Court of Utah

September 12, 1891

APPEAL from a judgment of the district court of the first district. The opinion states the facts, except that the suit was by the three trustees of the third school district of Emery county against the county collector and the two sureties upon his bond.

Affirmed.

Messrs Sutherland and Judd, for the appellants.

Mr George Sutherland, for the respondents.

ZANE C. J. MINER, J., concurred. ANDERSON, J., did not sit.

OPINION

ZANE, C. J.

The appellant, Elisha W. Jones, was assessor and collector of Emery county in Utah Territory during the years 1888 and 1889, and as such gave the official bond on which this suit was brought, in the sum of $ 2,000, with the other defendants as his sureties, payable in terms "to whomsoever it might concern," conditioned for the faithful performance of his official duties. Among others, the original complaint contained an allegation that on December 31, 1889, there was in the hands of Jones, due to the plaintiffs, as school trustees, school taxes in the sum of $ 444.40, which he refused to pay to them. This allegation the defendants denied in their answer. The case was tried before the court without a jury, and taken under advisement; and afterwards, before deciding it, the court gave the plaintiffs leave to amend the complaint, as follows: "That the defendants intended to execute the official bond provided by law, and to bind themselves to the Territory of Utah and Emery county as provided by law; and that on the 8th day of March, 1889, there was in the hands of defendant Jones, and due plaintiffs, of the school taxes of their district, $ 446.40." To the order allowing this amendment the defendants excepted. The amendment embraces two new allegations,--one as to the intent of the parties expressed in the bond, and the other was that the $ 446.40 sued for remained in the collector's hands on the 8th day of March, 1889.

As to the first amendatory allegation. The bond was set out in terms in the original complaint, and the court was bound to determine the legal effect of the language used. It appears from the language of the bond that Jones was elected to the office of assessor and collector of Emery county, and that it was given to secure the faithful performance of the duties of that office; and from the facts averred in the complaint it appears that Jones had in his possession as collector, on March 8, 1889, $ 446.40 of taxes assessed and collected in 1888, which had been apportioned as provided by law to the district of which the plaintiffs were trustees. Section 1922, 1 Comp. Laws 1888, provides that "the collector shall on the first of each month, or oftener, if required, pay over to the trustees all money collected by him for district school purposes; and on or before the 31st day of December of each year shall make a final settlement with said trustees, paying the full amount of all school taxes due, whether collected by him or not. School trustees' receipts shall be received by the collector in payment of district school taxes." This section made it the duty of the collector to pay the $ 446.40 to the plaintiffs on the 31st day of December, 1888, and, not having done so, on the 8th day of March, 1889, it was still his duty to pay it. And section 3169, 2 Comp. Laws 1888, provides that "every action must be prosecuted in the name of the real party in interest."

The plaintiffs, as trustees of their district, were the parties in interest as to the money sued for. The case of People v. Holmes, 5 Wend. 191, was an action in the name of the people on the official bond of a constable. In its opinion the court said: "A constable before he enters upon the duties of his office, is required to execute an instrument in writing, by which he and his sureties shall jointly and severally agree to pay to each and every person such sum of money as the constable shall become liable to pay on account of any...