10 Colo. App. 478 | Colo. Ct. App. | 1897
delivered the opinion of the court.
Two actions, brought in the district court of Arapahoe county by the same plaintiff against different defendants, in each of which judgment was given for the defendants, and an appeal taken from the judgment to this court, have been consolidated, and are presented to us as one case. The object of both was to recover upon a bond given by Matt Adams as clerk of the district court. A demurrer was sustained to the complaint in each case, and, the plaintiff declining to plead further, judgment was entered accordingly. There is
One of the suits is against the executor of the will of Y. D. Markham, deceased, upon a bond executed by Matt Adams, as -principal, and Y. D. Markham, as surety, on the 8th day of September, 1891; and the other against Dennis Sullivan and Job A. Cooper, on a bond executed by Matt Adams, as principal, and Sullivan and Cooper, as sureties, on the 4th day of November, 1893. The two complaints are substantially alike. They charge a misappropriation by Adams of the same, fund, and the bonds are in the same form. The complaints allege the appointment of Adams as clerk, and the execution of the bonds; and then aver that on August 19, 1892, Charles Howard, as assignee of Fallis H. Smith and Henry E. Curzons, having in his hands $3,500 of the estate of his assignors, which he was unable to turn over to the creditors of the estate by reason of a pending contest against the claim of one of the creditors, paid the money into court and deposited it with Adams as clerk; that the deposit was made without a formal order of court, but that it was entered upon the records of the court in its register of actions; that the court afterwards approved, recognized, ratified and adopted it by ordering Adams, on September 15, 1892, to pay out of it the sum of $531, which he did, and by ordering Miss Richards, his successor, on November 27, 1895, to pay over the balance of the deposit, for distribution among the creditors of Smith & Curzons, which she did not. The conditions of the obligations were that Adams should well and faithfully perform and execute the duties of the office of clerk of the district court, during his continuance in office by virtue of his appointment, without fraud, deceit or oppression, pay over all moneys that might come into his hands as such clerk, and deliver to his successor ail books, moneys, papers, and other things pertaining to his office, which might be so required by law. The breaches alleged are that the clerk did not pay over the balance of the deposit in Ms hands to his successor in office, or to any other person or persons
The bond required by statute from the cleric is conditioned that he will faithfully perform his duties as clerk, and punctually pay over to the person legally authorized to receive the same, all moneys that may come into his hands by virtue of his office. General Statutes, sec. 2477. While the phraseology of the conditions of the bonds in suit differs from that used in the statute, we think the effect is the same. Moneys coming into the officer’s hands as clerk, are moneys coming into his hands by virtue of his office; there can be no lawful payment over of such moneys, except to the person or persons legally authorized to receive them; and if at the expiration of his term he is in possession of money which he is required by law to pay to his successor, then the latter is the person legally authorized to receive it. In such case the successor, although not specifically mentioned in the statute, would be included in its terms, so that the obligations given bound the obligors to no more and no less than if their conditions had been in the exact statutory language. Counsel on both sides agree in assuming, although upon dissimilar grounds, that the bonds given were not statutory bonds, drawing, however, widely different conclusions from the same premises. We are inclined to the opinion that the deviation of the instruments from the phraseology of the statute is not sufficient to authorize a denial to them of the force and effect of statutory obligations; but in the view which we take of the case, it is immaterial whether they are to be regarded as statutory or common-law bonds. Whichever they may be, the liability upon them of the sureties is limited by their terms, strictly construed. Murfree on Official Bonds, § 302; People v. Pennock, 60 N. Y. 421; Gerber v. Ackley, 37 Wis. 43; People v. Moon, 3 Scam. 123; Orman v. People, 8 Colo. 292; Tate v. People, 6 Colo. App. 202.
We are therefore to consider whether the acts charged against Adams amounted to a violation of his official duties. Of course it was his duty, — as it is the duty of every per
Plaintiff’s counsel undertake to make a point on the averment that the money was received by. Adams by virtue of his office as clerk. They say that the demurrer admitted the allegation, and that in disposing of the question of the sufficiency of the complaint, it must be taken as true that in receiving the money he acted officially. But the allegation is nothing but a bare conclusion of the pleader, and is contradicted by the facts. A demurrer admits whatever is Avell pleaded; but a statement of a conclusion drawn from facts which do not warrant it, is not well pleaded. In one of the complaints is an averment, not found in the other, that when the deposit was made, Adams represented to Howard, that he, Adams, was, as clerk, authorized to receive the money Avithout any order of the court; but this in no way strengthens
From the facts which the plaintiffs lay before us it is clear that Adams received the deposit in his individual capacity, and not by virtue of his office. But it is insisted that the subsequent orders in relation to the money had the effect to make it a fund in court. The complaint alleges that on the 15th day of September, 1892, the court ordered that the clerk should pay from this money a certain specified amount, Avhich he accordingly did. The theory of the complaint, as also of the argument, is that the court by this order approved, or adopted, or ratified the act of the clerk in taking the money. A principal may ratify an act done by his agent in excess of the authority given; or one may adopt the act of another who assumed to be an agent but was not, in such manner as to estop himself to deny that the other was his agent. But the relations existing between a court and its clerk are not those of principal and agent, and the law of estoppel does not apply to courts. Orders, judgments, and decrees are made and rendered by the court in the exercise of its judicial functions, and these cannot be delegated. The clerk cannot, either expressly or by implication, be invested with the authority of the court. Doubtless the court, upon being adAdsed that there is money which has been placed in the hands of its clerk without its sanction, may, in a proper case,
We have discussed the order on the basis of the statements in the complaints concerning it; but if we were to accept counsel’s theory of the effect of such an order, we would be without the data necessary to an intelligent idea of what this one really was. Why it was made, at whose instance, on what showing and in what proceeding, to whom the money was to be paid and for what purpose, the complaints do not disclose. If it were permissible, which it is not, to seek for the intention of the court in respect to the deposit, as such intention might be implied from the circumstances, and give it the effect of an order different from the one actually made, before we could commence our search, we would have to be in possession of the unstated facts. Furthermore, at the time of the entry of the order, Adams may have already squandered all of the money except the amount he paid. If he had, he did so before the money was in his hands as clerk, and before any responsibility on account of it had attached to his sureties. No order of court could make them answerable for a defalcation for which they were not responsible at the time
But counsel, as if in partial abandonment of their first position, and of the case attempted to be stated in the complaint, insist with a good deal of energy that if the money was not in Adams’s hands by virtue of his office, he held it by color of his office, and that his sureties are liable in the latter case to the same extent as in the former. There is an apparent diversity among the adjudications, concerning the liability of the obligors upon official bonds for acts done colore officii; but when they are critically examined with reference to the facts, the form of bond, and the statute law-applicable, we think the differences will be found .to relate to words rather than principles. It is not necessary to a decision of the questions before us that we should enter into an examination of the distinction between acts done by virtue of office, and those done under color of office. By applying the universally recognized rule that the obligation of the sureties cannot be extended beyond the strict terms of the bond, to the case stated by the complaint, we can readily reach a conclusion in harmony with all the adjudications on both sides of the seeming conflict. The obligations of these sureties, in terms, made them responsible only for moneys which Adams might receive as clerk. Receiving money as clerk would be receiving it in an official capacity, or by virtue of the office. As we have seen this money was not received by him by virtue of his office. '
By our laws the assignee of an insolvent estate gives bond for the faithful performance of his duties. Pie acts, it is true, under the supervision and order of the court; but he collects
Let the judgments be affirmed.
Affirmed.