45 W. Va. 1 | W. Va. | 1898
In November, 1888, Joseph L. Curtis was elected sheriff df Brooke County, and on December 20, 1888, he qualified and gave bond as such sheriff before the county court of said county. As required by law, he g-ave two bonds,— one in the penal sum of • thirty thousand dollars, conditioned as required to faithfully discharge the duties of his office, and to account for and pay over all the money coming to his hands by virtue of his -office; and the second of said bonds was in the penal sum of fifteen thousand dollars, conditioned as required to account for all money coming to his hands by virtue of said office in receiving, disbursing', and collecting all school money collected by him as sheriff. On both of said bonds John Gibson, Robert Scott, D. Brown, S. George, L. C. Applegate, Henry Zilliken, Lucas Walter, W. P. Cowans, W. A. Rodgers, F. C. Glass, Walter Cowans, and J. K. Curtis were sureties. In conducting said business of sheriff, sa-id Joseph L. Curtis committed a default, and the county court of Brooke county, in the name of this State, brought suit against him and his securities on the first bond, and obtained judgment against the defendants for the sum of twenty-six thousand two hundred and fifty dollars and seventy-four cents, with interest from November 9, 1893, and costs amounting to one hundred and nine dollars and thirty-three cents. A suit in equity was broug-ht in the circuit court of said county by S. George, W. P. Cowans, John. Gibson, Robert Scott, Lucas Walters, and L. C.
Plaintiffs also allege that, during the entire term of said Curtis as sheriff of said county, said J. E. Curtis wras his deputy, had charge of the books, made most of the collections, and handled most of the money that passed through the office, and was in every way familiar with the business of the office; that said J. E. Curtis is the father of said Joseph L. Curtis, and, by reason of his acquaintance with
The defendants J. E. Curtis and Henry Zilliken filed their separate answers to the amended bill, as did also William Rodgers; and, Otto Heeren and William F. Hof man, partners of the firm of Heeren Bros., and William Hof man in his own right, filed their joint answer to said amended bill; and Hannah M. Hunter, adminis-tratrix of James Hunter, also filed an answer to the amended bill, — which answers put in issue the material allegations as to said defendants, and were replied to generally by the plaintiffs. Sarah B. Curtis also filed her answer to plaintiffs’ bill, adopting the answer of J. E. Curtis. Depositions were taken by both plaintiffs and defendants, and the cause finally heard on March 21,1896, and a decree rendered therein holding that J, E. Curtis, William A. Rodgers, and Henry Zilliken are liable to the plaintiffs for their^n? rata share of the amount paid by the plaintiffs on the judgment obtained in the name of the State of West Virginia, for the use of the county court of Brooke County, against said sureties in said sheriff’s bond, rendered. No
The first error relied on by the appellants is claimed to be in the action of the court holding that J. E. Curtis was liable to plaintiffs in any sum whatever on account of the judgment rendered against said plaintiffs by the circuit court of Brooke County,mentioned and described in the decree complained of and the proceeeings in the cause. Now, as we have seen, the object of this suit was to compel the defendant J. E. Curtis, to contribute his jiro rata proportion of twenty-one thousand seven hundred and forty-seven dollars and eig-bty-four cents, with interest and costs, for which judgment was rendered against plaintiffs, and which is claimed to have been paid by them, and to set aside certain transfers and conveyances made by said J. E. Curtis of his property as void. It appears from the record he was • charged with embezzlement, and four indictments were found against him for that offense, in connection with the conduct of the office of sheriff, and that the sureties on his official bond, part of whom are plaintiffs in this cause, were pressing the prosecution of these indictments; that J. E. Curtis, father of J. L. Curtis, sher
Could the plaintiffs in this case enforce such an agreement as the witness Palmer states was made between them and the defendant J. E. Curtis, to wit, that said defendant should pay them upward of five thousand dollars to have these'criminal proceeding's against his son stopped, and when they had complied with their part of the agreement by procuring the dismissal of said proceeding's, claim and hold the money? Such a contract would seem to be void, on the ground of public policy. Parson on Contracts (8th Ed., vol. 1, p. 440) thus states the law: “A promise to pa}’ money in consideration that the promisee would abandon proceedings in which the public are interested is not sustainable, because such consideration is void on grounds of public policy.” Now, when we recur to the fact that John Gibson, to whom was turned over this property of more than five thousand dollars by J. E. Curtis, states that he gave two thousand seven hundred and ten dollars of the amount realized from the notes turned over to him by said Curtis (on which he realized two thousand eight hundred dollars) to Mr. George, to use to settle the claim for the county against the sureties, even if we apply
Reversed.