Lewis v. Lee County

| Ala. | Dec 15, 1880

SOMERYILLE, J.

This is a suit on the bond of the appellant Lewis, as treasurer of Lee county, brought against him and his sureties, and is instituted in the name of the county, as “the person aggrieved,” within the meaning^ of section 2552 of the Revised Code, now composing section 2917 of the Code of 1876. The bond is payable to the State ob’Alabama, and not to the county, as required by section 923 of the Éevised Code. — Code of 1876, § 842. But this defect is cured by the provisions of section 171 of the Eevised Code (Code, 1876, § 181) which gave to the “person aggrieved” all the remedies which he might have maintained on a regular statutory bond, in all cases where the officer executing such informal bond has acted under it, as is averred to be true in this case.—Sprowl v. Lawrence, 33 Ala. 674" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/sprowl-v-lawrence-6506438?utm_source=webapp" opinion_id="6506438">33 Ala. 674.

The complaint is demurred to, among other reasons, on the ground that, the treasurer’s term of office having expired, the suit should have been in the name of his successor, who is shown to have been elected ; that he is the party aggrieved, because it is to him that the treasurer is required by the statute to “deliver all the money, books, papers, and property of the county,” in case of the former’s resignation, the expiration of his term, or his removal from office. — Eev. Code, § 933 ; Code of 1876, § 850. It may be, that the treasurer’s successor in office could have sustained the suit, as a party plaintiff, and is a “person aggrieved” within the provision of the statute, in as much as he is authorized by law to receive the money from his predecessor.—Morrow v. Wood, 56 Ala. 1" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/morrow-v-wood-6509448?utm_source=webapp" opinion_id="6509448">56 Ala. 1. But the treasurer is, after all, the mere agent of the county, appointed by law as the custodian of its moneys ; and the county is the principal, who is both the legal and beneficial owner of such moneys, having control, through the agency of the Court of County Commissioners, of all property belonging to the county, of every description whatever. — Code of 1876, § 817. The county of Lee was, therefore, the proper party plaintiff in this action.

It is further insisted, by way of demurrer, that it was not the duty of the defendant, Lewis, to receive any money collected by way of taxes to pay the interest on the railroad bonds. It does not appear otherwise than that the bonds were issued by the county of Lee under the provisions of the general law authorizing counties, towns and cities in this State to subscribe to the capital stock of railroads, approved December 31,1868. — Sess. Acts 1868, p. 514, No. 172. Taxes, assessed and collected under this act, would be money of the county, which it was the duty of the treasurer to receive and keep, and for the faithful disbursement of which his sureties would be liable. It does not appear that there is any special law taking the case out of the operation of the general law. Code (1876), § 845; Eev. Code, § 926; Acts 1868, p. 516, § 7-,

It has been repeatedly held by this court, that duplicity in the allegations of a complaint, or in statements of a plea, is, under our system of pleading, no ground for demurrer, except as to pleas in abatement. This defect was, at common law, the subject of special demurrer; and special demurrers are now abolished by statute, except, in effect, as to dilatory pleas. A redundancy, whether of good or bad matter, will, not now vitiate. — 2 Brick. Dig. p. 338, §§ 55-6; lb. 334, § 69. There was no error in overruling the demurrer to the amended complaint.

The witness Frazer’s testimony, as to his conversation with the defendant Lewis, regarding the condition of his accounts as county treasurer, was properly admitted in evidence. It was certainly good as an admission against him, and could not be excluded because not admissible against the sureties, who were his co-defendants in the action. The practice on this point is well settled in this State, that the only remedy of a co-defendant, in such a case, is to request a charge from the court to the jury, limiting the operation of the evidence,, so as to confine its influence only to the defendant against whom it is admissible. The safer and better practice, however, would be to limit its operation at the time of admission, so that the jury may not be misled during the progress of the argument.-—Goodman v. Walker, 30 Ala. 482" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/goodman-v-walker-6506022?utm_source=webapp" opinion_id="6506022">30 Ala. 482; 1 Brick. Dig. 810, §§ 98-99. So, of Lewis’ admission to Barnes, as to the amount he had collected of the “special railroad tax,” and of the report made by the committee appointed by the Commissioners Court to examine the treasurer’s accounts, which was admitted by Lewis to be “correct with the exception of the bank account.” What was meant by this exception, is a proper subject of parol explanation. The sureties should have raised their objection to the admission of this evidence, as against themselves, by requesting a proper charge touching the matter.

The item of $1,476, received in coupons of the Savannah and Memphis railroad bonds, was properly charged to the treasurer, at their par value. They were received from Barnes, by direction of the Commissioners Court, in lieu of certain moneys collected by him for the county of Lee. It would be immaterial whether there was a record made of the matter or not, as no one could be prejudiced by this fact. If Lewis was charged with this item, and also the one of $189, received in coupons from Thornton, he was entitled to a credit for each of them on the settlement of his accounts, on the production of the vouchers and proof of these facts. This was a matter relating only to theform of stating the account. In this view of the case, it becomes unnecessary to rule on the correctness of the two charges given by the court on these two items.

The court erred, however, in excluding from the consideration of the jury the statement of the defendant Lewis, deposed to by him as a witness in the cause, in regard to the item of $800 “State money” delivered by order of the Commissioners Court to the probate judge, in order that he might have it changed into currency. The money was lost, by reason of this act; Read,'the probate judge, subsequently becoming insolvent. He was thus constituted the special agent of the county, for this particular purpose, and the subsequent entry of the order on the record, among the court minutes, was a legal ratification of the informal authority as first given. The commissioners possessed the authority to make this order, very clearly, by virtue of their statutory duties. — Code (1876), §§ 746, 817 ; Rev. Code, §§ 832, 899.

Eor this error, the judgment of the Circuit Court is reversed, and the cause is remanded.