| Cal. | Jul 1, 1866
Lead Opinion
The bond mentioned in the complaint, as amended on the trial, is in the penal sum of five thousand dollars. It appears from the evidence that an official bond in that sum was executed by Kneeland, as principal, and four of the sureties, and was- then sent by Kneeland to be approved and filed for record; but it was returned to Kneeland, that he might procure sureties in an additional sum of five thousand dollars. Two additional sureties then executed the bond; and at or before they signed it, the word “ five ” was erased, and the word “ ten ” inserted, so as to make the bond read, “ in the penal sum of ten thousand dollars.” The evidence clearly shows that it was the bond for ten thousand dollars alone that was approved by the County Judge.
There is an insuperable objection to a recovery on the bond under the allegations of the complaint. The first four sureties did not sign the bond that was approved and filed for record. The bond they did execute was not delivered—that is to say, it was not approved and filed for record. The doctrine announced in People v. Edwards, 9 Cal. 292, that a defect in the approval of an official bond cannot, be taken advantage of by the obligors, and which we think is sustainable under the provisions of section eleven of the Act of 1850, concerning official bonds, does not dispense with the necessity of an approval. Without an approval the bond cannot be admitted to record in the proper office. The last act—the filing for record—may of itself constitute the delivery; but the filing, to be effectual as a delivery, must be preceded by the approval. Delivery is requisite in order to give obligation and effect to a bond, whether it is an official bond or a bond of any other
The principal occupies a position differing, in some respects, from that of the- first four sureties, for the bond, after the alteration was made, was with his knowledge and absent executed by the last two sureties and was then forwarded by him to be approved and filéd for record, his signature and seal still remaining to the bond, and he will therefore be deemed to have executed the bond as it read when approved. The judgment cannot be maintained against the principal obligor and the last two sureties, for the suit is brought on a bond for five thousand dollars and the bond they executed and which was offered in evidence was for ten thousand dollars. The variance between the allegations and proofs is fatal.
The counsel for the plaintiff contend that the oral testimony introduced by them without objection, in explanation or correction of the certified copy of the bond, and which they hold was admissible for that purpose, showed that the bond, when executed by the principal and the first four sureties, was for five thousand dollars; but admitting their position in both respects, they are not relieved of the real difficulty in the matter, which lies further along in the course of the transaction. If they could have shown it remained a bond for five thousand dollars at the time of its delivery, and that the alteration was subsequently made, oral testimony going to that extent would have been very material; but as we understand the evidence and the arguments of counsel, there is no pretense that the County Judge approved any official bond for Kneeland other than the one Kneeland forwarded to him for that purpose—the bond for ten thousand dollars, which was the only bond delivered by the obligors .or was accepted as Kneeland’s official bond. The point at variance was sufficiently specified when the certified copy of the bond was offered in evidence, by the objection on the ground of variance between the bond sued on and- the certified copy offered in
Judgment reversed and the cause remanded for a new trial.
Concurrence Opinion
If the bond for five thousand dollars in suit had been received and acted upon by the county officers as the official bond of the Assessor, I think the sureties would have been estopped from denying their liability on it, notwithstanding the fact that it did not.have the approval of any county officer indorsed upon. it. In People v. Evans, 29 Cal. 435, the sureties were held liable upon a bond approved by the County Judge, who had no jurisdiction to act in the premises. His act in approving the bond was absolutely void. There was, then, no approval. Such was the legal status of the bond. It was no better than it would have been had nothing in the form of an approval been indorsed upon it. The act of the County Judge in indorsing his approval without authority can have no more effect than the unauthorized act of the County Clerk in receiving and recording it without such void approval. But in this case the bond in suit was not received or acted upon by any county officer. On the contrary, it was rejected, and a bond for a larger amount substituted, upon which defendants did not become liable as parties. For these reasons I concur in the judgment.
Mr. Justice Sanderson did not express any opinion.