134 Ala. 369 | Ala. | 1901
The bill in this cause was filed by a surety upon one of a series of bonds executed by E. B. Lott as tax-collector of Mobile county, against certain of the sureties upon other bonds for contribution. It appears from the bill as amended that on the 22d day of August, 1896, Lott executed a -bond as tax-collector of Mobile county in the penalty of one hundred thousand dollars, with certain of the respondents as sureties thereon; that this bond was approved by the judge of probate and Lott entered upon the duties of the office as such tax-collector, and continued therein until the 15th day of September, 1897, when he resigned his office. It further appears that in 1896, in compliance with the recommendations of'the. grand jury of Mobile county, Lott was required to give additional, security in the sum of fifty thousand dollars as such tax-collector, and on the 14th day of January, 1897, he gave bond in said sum with sureties which was approved by the judge of probate. It also further appears that upon the application of one of the sureties upon the last mentioned bond for his discharge as surety “notice was issued to Lott ordering him to file a new additional bond as said tax-collector of Mobile county on or before March 31st, 1897. That in compliance therewith said Lott as such tax-collector” gave four bonds with different sureties aggregating in amount fifty thousand dollars, which were taken and approved by the, judge of probate of said
The prayer of the hill is that the defendants, sureties upon the other bonds given by Lott as tax-collector, he required to contribute to the payment of the amount paid by complainant for his default, inclusive of costs of court and damages upon appeal, in proportion to the penalties of their respective bonds.
It is next insisted that the right to¡ contribution is limited to the actual default of the principal and should not and cannot embrace the costs of the suit against the surety in; which such default was established. It is doubtless true that when the defense of a, suit by tlie creditor against a surety was needless or frivolous the costs of such suit cannot be included in the claim of the surety for contribution. He cannot, of course, claim for the consequences of his own wrong. Such was the case of Jones v. Jones, 16 Ala. 545, relied upon by appellant. The surety there was secured by a deed of trust to which he could have resorted for the payment
The contention that tbe bond upon which appellant, Carter, was surety was not a statutory bond is without merit. The bill clearly avers that Lott, as tax-collector, Avas required under tbe statutes to give the bond and that it aauis acted under by him. Therefore, although it may be subject to objection as to penalty, time of approval, etc., its stands by virtue of the statute in the place of tbe official bond, subject to all the remedies of a bond executed, approved arid filed according to lav .('Code, 1896, § 3089;. Code, 1886, § 275), including those conferred by sections 300 and 286 of-Code of 1886 (§§ 3132 and 3118 of Code of 1896) upon sureties among themselves.
Nor is the objection to- tbe dismissal of tbe bill as to two of tbe sureties whd 'paid to complainant their proportion of the debt! well taken. The liability of appellant, Carter, was not thereby increased.
Affirmed.