Commissioners of Iredell County v. White

31 S.E. 670 | N.C. | 1898

The plaintiffs are the commissioners of Iredell County. The defendant, Moses A. White, was elected sheriff of said county in November, 1894; that as such officer he gave the bond declared on for the faithful discharge of his duties as tax collector with the other defendants as his sureties; that as such sheriff and tax collector, he received the tax lists of said county for the years 1895 and 1896 for collection, and proceeded to collect said taxes, and from time to time to pay them over to the treasurer of said county. In September, 1896, he had a final settlement with the plaintiffs, at which time he paid them all that he was found to be due on said taxes, and this settlement was accepted by the plaintiffs as a final settlement, and recorded by them in the book of records of settlements of final accounts. And in November, 1897, he had another final settlement with the plaintiffs, through a committee appointed by the plaintiffs, and he then paid the plaintiffs (536) all that was found to be due them on account of all taxes collected or collectible by him. The defendant pleads these settlements in bar of plaintiff's action.

But the plaintiffs in their complaint set forth these settlements (or attempts to settle, as they call them), and then proceed to allege that, by inadvertence and mistake, there were many errors committed in said settlements, which they point out specifically in their complaint, and ask that the whole matter be referred to some good accountant to ascertain the truth of the matter, and report. This prayer of plaintiffs was granted by the court and an order of reference made. To this order the defendants objected upon the ground that they had pleaded a final settlement with plaintiffs for the taxes of 1895, and also for 1896, and this plea had not been disposed of; that the court could not refer the case where there was a plea in bar until that was disposed of. This is the only point presented by the appeal.

The general rule is that where there is a plea in bar it must be disposed of before a reference for an account can be made. Royster v.Wright, 118 N.C. 152; Grant v. Hughes, 96 N.C. 177. The reason of this rule is that it would be useless to take an account if the plea in bar would defeat the plaintiff's action, if found for the defendant. But it is otherwise where the matter pleaded in bar would not defeat the plaintiff's action, if found for the defendant. Humble v. Mebane,89 N.C. 410; Grant v. Hughes, supra. This is so for the reason that what is pleaded in bar is not a bar. The fact that there had been, as the parties thought at the time, a full and final settlement between the plaintiffs and the defendant creates a presumption and makes a primafacie case in favor of the defendant. This is so under the Revenue Act of 1895, ch. 119, sec. 110, and the act of 1897, ch. 169, sec. 113. (537) But it would have been so upon legal principles, without this special legislation.

If plaintiffs had alleged that defendant White, as sheriff and tax collector of Iredell County, had collected the taxes and failed and refused to pay over and account for the same, the defendant's plea of final settlement and payment would have been a bar to plaintiff's action, and must have been disposed of before the court would have been authorized to make the order of reference. But that is not this case. The plaintiffs recognize the settlements, as creating a presumption — a prima facie case for defendants — and proceed to allege specific errors in said settlements, and seek to surcharge and falsify the account and settlement. This was the equitable mode of relief. Pomeroy's Eq. Jur., sec. 871. Where fraud is alleged and shown, the whole account may be reopened; but where errors only are alleged and specifically pointed out, the account as stated on the settlement will not be set aside. But the party alleging error will be allowed to show the same; but this burden is on him. Daniel Ch. Pl. Pr., star p. 668. This was substantially held in Worth v. Stewart,122 N.C. 258, and Jordan v. Farthing, 117 N.C. 181, although these cases do not fall directly within the doctrine of surcharging and falsifying a settled account.

This action seems to have been brought under a clear conception of what was the equity practice in cases of this kind. The errors complained of are specifically stated in plaintiff's complaint, which entitles them to an order of reference that they may show the errors complained of, so as to correct the account and settlement under the directions (538) of the court, but not to have the settlement set aside.

There was no error in the court's making an order of reference, as pointed out in this opinion.

Affirmed.

Cited: Williamson v. Jones, 127 N.C. 180; Jones v. Sugg, 136 N.C. 144.