Opinion
No. 33487.
January 9, 1939.
SHERIFFS AND CONSTABLES.
Under statute rendering officer liable on bond for money coming into his hands by virtue of his official position, there was no liability on sheriff's bond for excessive payments made to sheriff by county for services (Code 1930, sections 2888, 2915).
ON SUGGESTION OF ERROR. (Division A. Feb. 20, 1939.) [186 So. 620. No. 33487.]1. APPEAL AND ERROR.
Where surety alone appealed from decree against surety and sheriff on sheriff's official bond, failure of Supreme Court to render judgment against surety for amount of decree rendered in trial court on ground that appeal bond conditioned on satisfaction of decree appealed from, if it should be affirmed, superseded decree which remained in full force and effect against sheriff, was not error (Code 1930, sections 22, 29).
2. APPEAL AND ERROR.
A sheriff desiring to join in surety's appeal from decree rendered against sheriff and surety on sheriff's official bond would have been required to give bond (Code 1930, sections 22, 29).
3. APPEAL AND ERROR.
Decree against sheriff on his official bond remained in full force, and plaintiff had right to proceed against him thereon, notwithstanding that decree was reversed as to surety on surety's appeal, where sheriff failed to join in the appeal.
APPEAL from the chancery court of Lowndes county; HON. T.P. GUYTON, Chancellor.
J.A. Covington, Jr., of Meridian, for appellant.
The surety on this bond, appellant here, does not deny that it is liable for damages sustained if this sheriff has failed, neglected or refused to perform any duty required of him by law or if this sheriff has violated his official obligations in any respect. Neither does it contend that West himself is not liable. Its sole contention is that its suretyship extends only to official duties and obligations prescribed by law and that the acts complained of are not within its undertaking, because the acts were not required by law to be done at all.
Section 2888, Code of 1930.
It is the contention of the surety that West made the claims and drew the money as an individual and not as a sheriff; that the law did not require West to make claims and draw compensation at all and that its bond did not guarantee any such acts.
Liability upon an official bond arises as a rule only with reference to acts of the officer which pertain to some function or duty which the law imposes upon his office. Thus sureties are not liable for a purely personal act of an officer, not done as a part of, or in connection with, his official duties.
46 C.J. 1068 (399); Furlong v. State, 58 Miss. 717.
W.W. Pierce, Assistant Attorney-General, for appellee.
In determining the question involved, to-wit: the liability of the surety, it must be kept in mind that the allegations of the bill of complaint are admitted by the demurrer. The bill of complaint alleges, in substance, that the funds sued for were received by West as sheriff, and that he received the same by virtue of his official position. Therefore, when the bill of complaint is viewed as a whole, it cannot be said that it is entirely without merit. If there is any merit in the allegations of the bill of complaint, there is called into play the application of that familiar rule that if there is sufficient equity on the face of the bill of complaint to require an investigation of the facts, it will stand as against a general demurrer.
U.S.F. G. Co. v. Young, 128 Miss. 296; Gully v. Bridges, 177 Miss. 891.
But appellant says that in securing the amounts for victualing prisoners out of which grows a part of the claim was not part of the official duty of the sheriff.
In order to arrive at the correct answer to this contention, and in order to determine whether or not it was a part of the official duty of the sheriff, it is necessary to examine the statute with reference to victualing prisoners, keeping in mind the duty resting upon the county to properly feed prisoners in custody of the law.
Chapter 193, Laws of 1932, sec. 8, par. (b).
We call the court's attention to the mandatory provisions of this statute: (1) The sheriff shall victual the prisoners and inmates of the county jail; (2) The sheriff shall make out a detailed list of said prisoners and inmates of the county jail, and the time each was victualed by him; (3) The sheriff shall make affidavit as to the correctness thereof; and, (4) The sheriff shall present the same to the board of supervisors for payment by it.
It is no answer to the bill of complaint to say that the sheriff acted as a private individual, and not in his official capacity, because the statute specifically enjoined these duties upon him. The provisions of the statute cannot be complied with by an individual. It must be done as sheriff of the county or not at all, because the sheriff is, by virtue of his office, jailer of the county, and in charge of the public duty of feeding the prisoners. This duty he assumes by virtue of his official position.
Gully v. Sewell, 169 Miss. 612; Ex Parte Jackson, 177 Miss. 509.
The condition of the sheriff's bond covered any and all acts done by him by virtue of his office, or any funds received by him by virtue of his official position. It covered any funds in his hands that belonged to the county, whether rightfully or wrongfully received, either by virtue of his office or by virtue of his official position.
McKinney v. Monroe County, 68 Miss. 284.
Section 2915 of Mississippi Code of 1930 had for its purpose the protection of funds received by public officers whether such funds were received in the performance of his official duties or otherwise.
The funds here sued for came into the sheriff's hands by virtue of his official position. That is evident by the fact that no other person could perform the duties and comply with Chapter 193 of the Laws of 1932, Section 8, Paragraph (b) thereof. His official position made it necessary that he as sheriff perform the duties prescribed. He was the public agent of the county for that purpose. No duty rested on him as a private individual.
The orders of the board of supervisors making the allowances can afford no protection to either the sheriff or his surety.
McKinney v. Monroe County, 68 Miss. 288; Howe v. State, 53 Miss. 57; Wesson v. Collins, 72 Miss. 849.
Section 2915 of Mississippi Code of 1930 supplants the rule laid down by the court in Furlong v. State, 58 Miss. 717. Therefore, the rule laid down by the court in the Furlong case does not control the surety's liability in this case.
City of Biloxi v. Gully, 177 Miss. 782.
This is a suit on the official bond of Harry West, as Sheriff of Lowndes County, on which the United States Fidelity and Guaranty Company is surety. The bill of complaint alleges that West, on the allowance of the board of supervisors of Lowndes County, received from the county treasury payment for various services rendered by him to the county as sheriff in excess of what the governing statutes permitted. The suit is for the recovery of this excess. The condition of the bond sued on is: "That if the said Harry West as Sheriff shall well and faithfully perform all the duties of his said office, then this obligation to be void, otherwise to remain in full force and effect," as provided by Section 2888 of the Code of 1930. A demurrer by the surety to the bill of complaint was overruled and the case proceeded to trial and resulted in a judgment in accordance with the prayer of the bill. The surety only appeals. The exact question presented was decided in Furlong v. State, 58 Miss. 717, wherein the court held that the presentation to the board of supervisors by a sheriff of claim for the payment of money alleged to be due him by a county, and the collection from the county by him thereof "was an individual, and not an official act; the exercise of a right given, not the performance of a duty imposed by the statute," and therefore not within the coverage of his official bond.
But the appellee says that Section 2915 of the Code of 1930, not in existence when that case was decided, requires a contrary holding. That section provides that: "Any officer, state, county, municipal or district, or any other custodian of public funds or property, who shall improperly withhold same from the state or county treasury or other authority whose duty it is to receive same, or who shall fail to turn property over to the proper custodian, or who shall in anywise be in default as to any money or property held by him as a public official in this state, or in any other capacity as custodian of such funds or property, which may come into his hands by virtue of his official position, whether in the proper performance of his official duties, or otherwise, shall be liable on his bond for all cost of collection or recovery of money or property, including in such costs the commissions, if any, of the state tax collector or the attorney-general, and all other costs connected therewith, including interest on funds improperly withheld, for such time as such funds have been withheld, and reasonable rental and damages where property belonging to the public is so withheld." The funds or property for which this statute requires a public officer to account are such as "come into his hands by virtue of his official position, whether in the proper performance of his official duties, or otherwise." The money herein sought to be collected did not come into the sheriff's hands, as pointed out in Furlong v. State, supra, by virtue of his office, properly or otherwise. Had he, when having money in his hands belonging to the county, deducted therefrom money claimed to be due him by the county and paid the remainder over to it, a different question would be presented. This of course does not mean that the sheriff himself is not chargeable with overpayments made to him, but only that he is liable therefor individually and not on his official bond. An illustration of the meaning and application of this statute appears in Gully v. City of Biloxi, 177 Miss. 782, 171 So. 698.
The decree of the court below will be reversed, but only insofar as it affects the United States Fidelity Guaranty Company, and the bill of complaint will be dismissed as to it.
So ordered.
The appellee sued in the chancery court on the official bond of West, Sheriff of Lowndes County, on which the United States Fidelity and Guaranty Company is surety, and was awarded a decree against both West and his surety for the sum of $2,088.30. The surety company only appealed.
On a former day of this term the decree was reversed, insofar as it affects the United States Fidelity and Guaranty Company, and the bill of complaint was dismissed as to it. The appeal bond contained a supersedeas clause and was in the following language: "The condition of the foregoing obligation is such that whereas in the Chancery Court of Lowndes County, Mississippi, a judgment or decree was rendered against H.G. West and the United States Fidelity Guaranty Company in favor of Greek L. Rice, Attorney-General, at the regular April Term 1938 on April 12, 1938, and the said United States Fidelity Guaranty Company feeling aggrieved by said judgment or decree was prayed and obtained an appeal to the Supreme Court. Now, if the said United States Fidelity Guaranty Company shall satisfy the judgment or decree complained of and also such final judgment or decree as may be made in the cause and all costs, if the same be affirmed, then this obligation to be void; otherwise to remain in full force and effect."
The appellee now suggests that we erred notwithstanding the reversal of the decree of the court below insofar as it affects the United States Fidelity and Guaranty Company, in not rendering a judgment against that company for the amount of the decree rendered in the court below. The reason given thereof is that this bond superseded the decree, which decree remains in full force and effect against West. We committed no error in not rendering such a judgment. The bond was conditioned exactly as required by Section 29, Code of 1930. Section 22 of that Code provides that any party to a judgment or decree may appeal therefrom; "and if all the parties to a judgment or decree do not join in the appeal, the clerk of the court from which the appeal is taken shall issue a summons, when the appeal is taken, to such as do not join in the appeal to appear before the Supreme Court, at the return term of the appeal, and unite in the appeal; and if they fail to obey the summons, they shall not afterward have the right of appeal, and the judgment or decree of the court below shall remain in full force against them."
Summons was here issued for West to join in the appeal and he failed so to do. Had he desired to join in the appeal, it would have been necessary for him to give the required bond therefor. Wilkinson v. Love, 149 Miss. 523, 115 So. 707. When he failed to join in the appeal, the decree against him remained in full force and effect, and the appellee had the right to proceed against him thereon.
The condition of the bond and the requirement of Section 29, Code of 1930, is that the judgment or decree appealed from shall be satisfied "if the same be affirmed." The decree here appealed from was not affirmed but was reversed as to the appellant, and because of what has hereinbefore been said it remained in effect against West unaffected by the appellant's appeal.
Overruled.