Wycough v. State

• Decision Date: 24 December 1887
• Parties: WYCOUGH <I>et al.</I> <I>v.</I> STATE, to Use of INDEPENDENCE CO.
• Court: Arkansas Supreme Court

6 S.W. 598

WYCOUGH et al.

v. STATE, to Use of INDEPENDENCE CO.

Supreme Court of Arkansas.

December 24, 1887.

Appeal from circuit court, Independence county; R. H. POWELL, Judge.

Action against Wycough et al., sureties on the official bond of R. H. Lee, late treasurer of Independence county, instituted by the state of Arkansas to the use of Trimble as treasurer of that county. Judgment against the sureties, who appeal.

Robert Neill, for appellants. Coleman & Yancey, for appellee.

COCKRILL, C. J.

The appellants are sureties in the official bond of R. H. Lee, late treasurer of Independence county. This suit was instituted against them by the state, for the benefit of the county, to recover the county funds which the county court, after a settlement with his administrator, found remained in Lee's hands at the time of his death. The complaint alleges, and the records of the county court show, that preliminary steps for a settlement were taken by the court in Lee's life-time, through the instrumentality of a committee of accountants called in by the county judge to aid him in investigating the treasurer's accounts. It does not appear that Lee had had notice of this proceeding. Its only object seems to have been to acquaint the court with the facts necessary to an intelligent understanding of the official accounts, when the time for final action came. Before the accountants made their report, the treasurer died. R. M. Desha was appointed administrator of his estate; and at the next term of the county court thereafter he appeared in obedience to the order of the court, and of the duty imposed upon him by the statute, to make a settlement of his intestate's accounts as treasurer. The administrator waived formal service of the citation to appear and settle; and, the new treasurer being present to receive from the administrator the public funds which had come to his possession, the court, to quote from the record entry, "after a thorough investigation of the books, papers, and vouchers pertaining to the office of the late treasurer * * * found that said Richard H. Lee, deceased, late treasurer of said county, at the time of his death was short in the funds belonging to the county, in the sum of $2,649.41;" and it was further found that Desha, as administrator, had in his possession $529.83, "turned over to him as part of the funds of the county." The court thereupon required the administrator to pay over that amount to the then treasurer, placed it to Lee's credit, found the deficit to be $2,119.58, and directed the new treasurer to collect that amount from the sureties. This suit was instituted for that purpose. The complaint alleged the election of Lee as treasurer, the execution and approval of the bond, the receipt thereafter of the county funds by Lee as treasurer, the settlement of his accounts by the county court as before detailed, and a failure to discharge the balance thus found to be due the county. The sureties' answer denies none of the allegations of the complaint; it does not deny that their principal was indebted to the county in the amount stated by the county court, but alleges that they were not required, and that no opportunity was afforded them in the county court, to show the state of their principal's accounts. This was the only defense. They raised the same question by a demurrer to the complaint, and by interposing objections to the record of the county court as evidence of the amount of their liability. Their objections were all overruled. There was judgment for the plaintiff, and the sureties appealed.

It is the settled doctrine in this state that no action can be maintained against the sureties on a county treasurer's bond until the accounts of the principal have been adjusted by the county court. State v. Croft, 24 Ark. 550; Hunnicutt v. Kirkpatrick, 39 Ark. 172. When the settlement is made by the principal himself, or the accounts are adjusted by the court after notice to the principal, the adjustment, in the absence of fraud or collusion, concludes any further inquiry into the state of the officer's accounts, whether the sureties have had notice or not. Cases supra; Stovall v. Banks, 10 Wall. 583; 1 Whart. Ev. § 770; Freem. Judgm. § 180; Baylies, Sur. 140; Schouler, Ex'rs, § 531; Norton v. Miller, 25 Ark. 108; George v. Elms, 46 Ark. 260. The county court is the tribunal designated by law for the settlement of the treasurer's accounts. The sureties, by their contract and force of law, covenant for the faithful performance of their principal's duty to settle in accordance with the orders of that tribunal, if no appeal is prosecuted from its findings. As was said by Chief Justice WATKINS, in Bank v. Robinson, 13 Ark. 221, "when one covenants in respect to the acts or omissions of another, he is bound by the act or omission as the principal is bound by the act of the agent." But the contention now is that the adjustment of the accounts through the administrator of the estate of the deceased principal is not within the contract of the sureties, and is not evidence against them. It has been so ruled in Alabama, in regard to the settlements of the...