77 Ark. 328 | Ark. | 1905
(after stating the facts.) 1. Appellants contend that their demurrer should have been sustained because a cause of action is not stated calling for equitable interference, and that the several sets of bondsmen can not be joined in one action. They rely upon the case of State v. Turner, 49 Ark. 311, as sustaining their contention. That case was a suit against a county collector and six sets of sureties on his several official bonds to set aside erroneous settlements with the county court. A demurrer to the complaint was sustained, and this court affirmed the decision of the circuit court. The decision is placed upon the ground that the allegations of the complaint lack precision, and do not point out specifically the errors and fraudulent credits complained of; and that no cause is stated for uniting the sureties on the several bonds in one suit. It is pointed out in the opinion that the collector is not required by law to keep books and accounts from which the condition of his account with the county can be ascertained, but that his account is kept by the clerk, and in this way the court distinguishes the case of State v. Churchill, 48 Ark. 426, where, upon similar allegations, a suit of this kind was maintained against the State Treasurer and the separate sets of sureties on his several official bonds.
; We think that the facts of this case bring it within the doctrine established in the Churchill case, and that the suit properly lies in equity, and that all the sureties may be joined in one suit. In this way only can the ends of justice be met.
Mr. Justice SomervieeE, in delivering the opinion of the court in Lott v. Mobile County, 79 Ala. 69, said: “The questionof multifariousness is often one of policy and convenience, and therefore rests largely within the discretion of the court. It is sufficient to sustain a bill against such a charge that each defendant has an interest in some of one matter common to all the parties. The objection is discouraged when sustaining it might lead to inconvenience or defeat the ends of justice. Piling separate bills against each set of sureties in this case, it seems to us, might lead to great inconvenience, in view of the peculiar interests each surety has in the taking of the account, and the correction of alleged errors of credits and payments.”
The county clerk is the custodian of the books of the county and the keeper of the various accounts of the county with himself, as well as with all others who have dealings with the county. It is here alleged that the clerk presented and procured the allowance of improper and fictitious accounts, fraudulently issued scrip to himself upon fictitious allowances and upon judgments or allowances which he had fraudulently raised in amount, and that the accounts kept by him are so complicated that it is impossible to point out and designate the various items, or ascertain the liability of the respective bondsmen without the aid of a court of equity and the reference to a master.
We think these allegations are sufficient to give a court of equity jurisdiction, and justify a joinder of the several sureties in one suit.
2. It is next contended that the decree was erroneous because the proof failed to show that 'the fraudulent warrants have ever been paid by the county.
It is too plain, upon principle, to need citation of authority in support of it that sureties on official bonds, as well as upon other undertakings, are liable thereon for only such breaches as result in injury to the obligee, and only to the extent of such injury. Appellants say that, notwithstanding the misconduct of the principal, which amounted to a breach of his bond, the county suffered no injury because the warrants have not been paid, and that, being void because of the fraud, the county is in no wise liable for payment thereof. State v. Hinkle, 37 Ark. 532, was an action brought at law by the State for the use of Izard County to recover from a sheriff illegal fees allowed to him, and for which warrants had been issued but not paid. This court held that no recovery could be had in that suit, without showing that the warrants had been paid. The case at bar is, however, altogether different. This is a suit in equity to surcharge the account of the clerk as well as to recover from him and the sureties on his^ official bonds the amounts. for which warrants have been fraudulently issued to him in excess of .the proper amount due. The primary object of the suit is to correct his accounts, and to ascertain upon which of his bonds rests the liability for his official misconduct. When this was done, the court of equity, which should not grant relief by piecemeal, went further and properly granted such relief as afforded adequate protection to the county from injury. If the county was not liable for the outstanding illegal warrants, and could not be required to pay them, and should refuse to pay them, then appellants would be liable to the holders of the warrants. Since the county elects to treat the warrants as outstanding liabilities, and to take a decree for the amount thereof, giving appellants the right to satisfy the decree by production and surrender of the warrants, no harm is done to appellants by thus transferring their liability from the holders of the warrants to the county. The court in this way protected the county from the danger of having the warrants pass without notice of illegality into the hands of the collector of taxes or treasurer. It is just such remedy as a court of equity should afford. The warrants in question embraced both legal and fictitious allowances, and, if the warrants had been before the court, as in the case of Shirk v. Pulaski County, 4 Dillon, 209, the court might have inspected them, and, as was done in that case, cut them down to the proper and legal amounts. But in that case the plaintiff brought the warrants before the court, asserting their validity, whereas in the case at bar the- warrants were not before the court. It was not shown who the owners were, nor whether the warants had ever been paid. If the warrants are in the hands of third parties, and the county refuses to pay them, appellants are liable on their bonds to such holders for the fraudulent misconduct of the clerk in issuing them; if they have been paid by the county, appellants are liable; and if the warrants are in the hands of appellants, or either of them, the decree can be satisfied by production and surrender thereof. So in no event are appellants injured by the peculiar remedy allowed by the court. If the warrants have never passed out of the hands of appellant Place, appellants should have shown that fact by way of defense.
We find no error in the decree, and it is in all things affirmed.
