Pearce v. Hall

113 Ala. 245 | Ala. | 1896

COLEMAN, J.

In December, 1886, W. R. H. Loden executed his official bond as sheriff of Marion county, with petitioners (appellants) as sureties. His term of office expired in 1888, as shown by the abstract. By virtue of his office as sheriff and during its term, he was appointed guardian. In December, 1893 he filed his account and vouchers for a final settlement of his guardianship, in the probate court of Marion county, which court rendered a decree against him on his said final settlement. Execution issued upon this decree against him and his sureties. The sureties (appellants) thereupon filed their petition, and prayed that the execution be quashed. The ground of the petition seems to be that at the time of the rendition of the decree, the term of office of their principal had expired, and that they were not bound as sureties on his official bond by such a decree. One argument is, that the decree does not imply a liability prior to the date of its rendition ; and the other is, that the sureties of the sheriff on his official bond are not bound for his acts after the expiration of the term of office.-Gravett v. Malone, 56 Ala. 25; Yeend v. Weeks, 104 Ala. 331. Conceding that both propositions are true in a proper case, these principles have no application to the facts as presented in the petition. "When the sheriff was appointed guardian by virtue of section 2377 of the Code of 1886, and by the condition of his bond, the sheriff and his sureties became bound in all respects so long as his guardianship continued, as if the bond had been specially executed by him as guardian. The petition nowhere negatives* the fact that the money received by him, and with which he was charged on final settlement, was received before the expiration of Ms term of office ; while the decree of the court, rendered on final settlement, which is made an exhibit to the petition, admits of no other construction than that the money was paid oyer to him during his official term as sheriff, and while he was guardian. Having been appointed guardian by virtue of his office as sheriff, it may be that his guardianship expired with the termination of his official office as sheriff; but the termination of his guardianship no more relieved him from liability for money received by him as guardian during his official term, than death or resignation of the guardian would discharge his sureties from accountability. If the money had in fact been received by him after the expiration of his term as sheriff, which also terminated his guardianship, the cases would have been more analogous and in point. We do not say that in such a case, by a proper proceeding in a court of jurisdiction, the sureties would not be relieved. We have no such case before us.-City Council v. Hughes, 65 Ala. 204; Gravett v. Malone, 54 Ala. 19, supra. If the contention of appellant was sound, there was never a time in which his sureties could be held liable for the money received by their principal. There was no ground to force the guardian to a final settlement, during his term of office as sheriff, and according to appellants' contention, the liability of the sureties ceased with the expiration of his term of office. Such is not the law.

The judgment and decree of the probate court, refusing the relief prayed for, and dismissing the petition, is in all things affirmed.

Affirmed.