29 Cal. 429 | Cal. | 1866
This is an action upon the official bond of the defendant, Mark A. Evans, to recover the balance of moneys which came into his hands as Treasurer of San Joaquin County, and which have not been paid over. Defendant, Evans, having been elected Treasurer of said county, and having qualified by taking the proper oath and filing the bond in such cases required, entered upon the duties of his office on the first Monday of October, 1859, and served the full term of two years. The bond was approved by the County Judge of San Joaquin County. On the 22d of July, 1861, L. B. Bradley, one of the sureties, gave written notice to the County Judge, who had approved the bond, that he desired to withdraw as surety, and be released from all liabilities that might thereafter arise, on the ground that he was afraid of sustaining loss if he remained longer on the bond. The notice was addressed to, and marked filed by, the County Judge, and also by “ Edw. M. Howison, Clerk,” and a copy served on defendant, Evans, the principal on the bond. Thereupon said Evans presented another bond with additional sureties, which was indorsed approved by the County Judge, and filed July 27th, 1861. There was no formal order discharging the sureties on the original bond. Appellants claim—an,d for the purposes of the decision it will be assumed to be true—that the evidence shows a settlement of Evans’ accounts to have been made on the twenty-second of August—subsequent to the filing of the second bond.
The Court found defendant, Evans, to have been a defaulter at the expiration of his term of office, for the full amount claimed, and that the sum unpaid became due on the seventh of October, 1861. Judgment was accordingly entered against the appellants as sureties on the original bond. The principal question is, whether the sureties on the bond in suit were discharged by the filing of the second bond under the circumstances of this case.
The proceedings of Bradley to procure his discharge were
“ Sec. 2. Any surety on the official bond of a city, county or State officer may be relieved from liabilities thereon after-wards accruing by complying with the following provisions of this Act:
“ Sec. 3. Such surety shall file with the Court, Judge, Board, officer, person or persons, authorized by law to approve such official bond, a statement in writing, setting forth the desire of the said surety to be relieved from all liabilities thereon afterwards arising, and the reasons therefor, which statement shall be subscribed and verified by the affidavit of the party filing the same.
“ Sec. 4. A copy of the statement shall be served on the officer named in such official bond, and due return or affidavit of service made thereof, as in other cases.
“ Sec. 5. In ten days after the service of such notice, the Court, Judge, Board, officer, person or persons, with whom the same may be filed, shall make an order declaring such office vacant, and releasing such surety from all liability thereafter to arise on such official bond, and such office shall thereafter be held-in law as vacant, and be immediately filled by election or appointment, as provided for by law, as in other cases of vacancy of such office, unless such officer shall have, before that time, given good and ample surety for the discharge, of all his official duties, as required originally.
“ Sec. 6. This Act shall not be so construed as to release any surety from damages, or liabilities for acts, omissions or causes existing, or which arose before the making of such order as aforesaid, but such legal proceedings may be had therefor in all respects as though no order had been made under the provisions of this Act.” (Laws .1853, p. 224.)
Discharge of surety on official bond.
By the provisions of sections three and five the statement must be filed with, and the order declaring the office vacant
“This position would seem to be correct. The phrase, 1 persons authorized by law to approve such official bond,’ does not refer to the person who did in fact approve the particular bond, but it refers to the Board or person then authorized to approve 1 such official bond ’—that is, a Board of that character. If it had been the intention of the Act to confine
County Judge cannot discharge sureties on official bond of Treasurer.
The proceeding in the case now under consideration was before the County Judge. The petition was addressed to and marked filed by him, and all the subsequent proceedings had in the matter were had before that officer. The bond in suit had been approved by the County Judge. Evidently the parties supposed the County Judge to be the officer before whom the proceedings must be had to procure a discharge of the sureties, and they acted accordingly. It becomes necessary to determine, then, whether the County Judge is the officer or person “ authorized by law to approve such official bond
It follows that the County Judge had no jurisdiction in the proceeding to discharge the sureties, or to approve the new bond, and that his acts in the matter are void. The whole
For the purpose of the decision we have assumed the papers showing the state of facts relied on to discharge the sureties to be in evidence. They were offered as a whole, and with their indorsements show precisely what was done, viz: the state of facts assumed. But this state of facts is wholly ineffectual to discharge the appellants from their liability as sureties on the bond. They do not establish, or tend to establish a defense to the action, and there was no error in excluding the documents.
The other points made as to the suit being dismissed as against some of the defendants, and as to proceeding to trial and judgment upon the issues joined by appellants, without waiting for service upon other defendants, are answered by Sections 15, 32, 146 and 148 of the Practice Act. (See also People v. Love, 25 Cal. 526-31; Reed v. Calderwood, 22 Cal. 465.)
The judgment must be affirmed, and it is so ordered.
Mr. Justice Rhodes was absent at the argument of this case, on account of sickness in his family, and consequently did not • participate in the decision.