This was an action upon the county treasurer’s official bond, to recover the amount claimed to be due from such treasurer, who had absconded. The answer was a general denial. On motion of the plaintiff, upon due notice duly served, the court referred the case to a referee, with directions to report findings of fact to the court. The case was heard by the referee, who found the facts, which were adopted by the court as its findings, and conclusion of law stated by the court, upon which a judgment was rendered in favor of the plaintiff for the sum of $1,226.20. From this judgment the defendants appeal. There are numerous errors assigned, but, as the counsel for appellants has only discussed four of them in his brief, we shall -confine ourselves to the consideration of those errors only discussed in the brief of counsel.
The learned counsel for appellants contends that the notice of the motion for a referee was insufficient, in.that the title of the case was simply “Jerauld County v. W. J. Williams et at”; but, as it was not shown and is not claimed that there was any other
The second point made by the learned counsel for appellants is that the court had no authority to refer the actions, as the action was one at law, and not in equity, and it did not appear that there was any agreement of the parties filed or entered in the minutes. There would have been much force in this objection if the counsel had appeared and contested the application, but failing to appear after due notice that such an application would be made, and oppose the motion, was a tacit consent that such an order might be made; and it appears from the record that several months elapsed after the order was made before the hearing by the referee, and no motion was made to vacate or set aside the order. In view of the facts, therefore, as they appear in the record, we are of the opinion that the defendants waived their right to object to the order before the referee or before this court.
But there is a further and more conclusive ground upon which the order can be sustained in this court, and that is that the record does not affirmatively show that there was not an “agreement of the parties filed with the clerk or entered in the minutes.” In such case this court will presume, in support of the order and judgment, that such an agreement was made. Kent v. Insurance Co., 2 S. D. 800, 50 N. W. 85. In that case this court held that it “is only when the record affirmatively shows error that this court will revise the judgment.”
It is further contended that the sureties were not liable for the penalty provided by sectiom 617, Comp. Laws. But we cannot agree with counsel in his contention. When the treasurer absconded without paying over to the county the moneys in his hands belonging to such county, there was a breach of his official bond, and the damages in case of such breach are definitely fixed by section 617; Comp. Laws. That section reads as follows: “If any person thus chargeable shall neglect or refusé to render true accounts or settle as aforesaid, the county commissioners shall adjust the accounts of such delinquent according to the best information they can obtain, and ascertain the balance due the county, and order suit to be brought in the name of the county therefor; and such delinquent shall not be entitled to any commission, and shall forfeit and pay to the county a penalty of twenty per cent, on the amount of funds due the county.” The sureties could not reasonably claim that the treasurer’s commissions should be allowed as to them, though not allowed as to the treasurer. We think it is also clear that the sureties are liable for the penalty. In assuming the liabilities of sureties, they necessarily assumed the liability of such damages as the county might suffer and be entitled
Finding no error in the judgment, the same is in all things affirmed.