City of Harrisburg v. Guiles, Appeal, No. 9

Appeal, No. 9 | Pa. | Jul 19, 1899

Opinion by

Mb. Justice McCollum,

Isaac W. Guiles was appointed by the treasurer of the city of Harrisburg collector of the unpaid taxes for the year 1893. He entered into a bond to the city in the sum of $30,513.02 with the appellants as sureties. The condition of the obligation was that “ if he faithfully accounted, according to law, for all taxes charged in the duplicate delivered or to be delivered to him by said treasurer, and in all respects faithfully performed the duties of his appointment as prescribed by the laws of Pennsylvania and the ordinances of the city of Harrisburg, then the obligation to be void, or else to be and remain in full force and virtue.” As he failed in the performance of the duty imposed by his appointment the city entered judgment on the bond and issued execution thereon. The appellants alleging that the execution was improvidently issued petitioned the court to set it aside. On this petition a rule to show cause why the execution should not be set aside was granted, pending which the writ was stayed, lien of levy remaining. In another petition filed subsequent to the petition already referred to, the appellants claim, inter alia, that they were relieved from liability on the bond in question by the fraudulent concealment by the city officials of the misconduct of Guiles as collector of delinquent taxes from and including the year 1885 down to and including the year 1893. They also charge the city officials with wilful neglect of their duties pertaining to the collection of said taxes. On this petition the appellants prayed for and obtained a rule to show cause why judgment should not be opened to enable them to interpose their defense to it. Upon a full hearing had on the rule to show cause the court below held that the claim and charge aforesaid were not warranted by the evidence and, having ascertained the amount due to the city from the collector and his sureties, discharged the rule to show cause and allowed the execution on the judgment to proceed for the sum due, with interest thereon from October 15, 1897. S. W. Fleming and H. J. Forney, two of the sureties on the bond, being dissatisfied with the decision of the court below, appealed from it.

The principal question raised by the assignments of error is whether the negligence of Guiles in the performance of the duty imposed by his appointment and the neglect of the city officials to bring him to account as they might have done relieves the sureties from liability on the bond. In considering this question we must have in view the facts as found by the court below and the evidence on which they were based. In the first place we note the absence of any charge in either of the petitions filed by the sureties that Guiles was guilty of embezzlement, and of any evidence submitted on the hearing which would support such a charge if made. We notice also that there is no evidence in the case which can be considered as sufficient to establish wilful and fraudulent concealment from the sureties by the city officials of the negligence and misconduct of Guiles in his capacity of collector of taxes. These are the conclusions reached by the learned court below upon a careful and impartial consideration of the evidence, which seems to us quite sufficient to sustain them. We certainly fail to discover in the evidence any warrant for an inference which would justify us in reversing them. As it was not shown that Guiles embezzled the money of the city, or that the city officials wilfully and fraudulently concealed from the sureties Ins negligence and irregularities in the performance of his duties as collector, there is no discoverable ground for relieving the sureties from liability on the bond. The assignments from four to ten inclusive do not require special notice. They relate to matters properly disposed of in the elaborate opinion of the court below and need not be discussed here.

The assignments are dismissed and the judgment is affirmed.