Self v. Blount County

124 Ala. 191 | Ala. | 1899

DOWDELL, J.

— The appeal in this case is taken from the decree of the chancellor overruling respondents’ de murver and motion' to dismiss the bill. The cause was set down for hearing before the chancellor on notice in vacation. The notic.e given was for a hearing on the demurrer, motion to dismiss for want of equity, and motion to strike certain parts of the bill. The chancellor very properly declined to rule upon the latter motion. There is no statute or rule of practice authorizing the setting down for hearing in vacation before the chancel lor on notice, a motion to strike out parts of a bill. Under rule 35 of chancery practice, exceptions to the bill or answer may be heard before the.register in vacation, and from the decision of the register an appeal may be taken to the chancellor, it is only by appeal that such matter can be brought before the chancellor in vacation. Under rule 71, pleas, demurrers, or motions to dismiss for want of equity may be set down for hearing on notice before the chancellor in vacation, but this rule cannot be extended to include exceptions to the bill or motions to strike. As there was no ruling by the chancellor on the motion to strike, there is nothing presented here on that motion for revision by this court.

The purpose of the bill is to compel the respondent, Bell, as ex-treasurer of the county of Blount, and the sureties on his two official bonds, to an accounting for the misappropriation by him, as such treasurer, of money coming into his hands as such, belonging to the general fund of the county, and for misappropriation by him.of money belonging to the fine and forfeiture fund and also for the enforcement of a lien given by the statute against the property of the principal for the money so misappropriated by him during his term of office; and. also for a. discovery. There can be no doubt of the equity of this bill. — Code of 1896, § 3078; Jackson County v. Derrick, 117 Ala. 348; Lott v. Mobile County, 79 Ala. 69; Dallas County v. Timberlake, 54 Ala. 403. There was no error in overruling the motion to dismiss the bill for want of equity.

The bill avers the election and induction into the office as county treasurer of the respondent Self, and that he executed as such treasurer, two bonds, the first one upon his induction into office in August, 1892. The second bond .was executed by him and his sureties on that bond, in May, 1893, after an application made by one of the sureties on the first bond, under the statute, to be discharged as such surety. The bill avers that during his term of office as such treasurer, he kept but one single running account through his entire term, in which no balances were ever struck. It also avers the receipt by him as such treasurer, during his term of office, of a certain amount of money belonging to the general fund of the county, and a conversion or misappropriation by him of a certain amount of said funds, alleging that at the expiration of his term of office, upon the examination of his accounts, he was shown to be a defaulter for some thing over $3,000. It also alleges the misappropriation of a certain amount belonging to the fine and forfeiture fund of said county. It is not stated in the bill at what particular time any particular conversion or misappro priation was made by him, and from the averment in the bill as to his manner of keeping his account, it appears that it would be difficult if not impossible to allege with any degree of certainty or definiteness at what time or times the conversions or misappropriations may have been made byr him. These are matters which may be shown by the evidence on the hearing and the accounting. Under the circumstances, made so by the manner in which the account was kept by the principal in the bonds, we think the averments in the bill as to the misappropriations of the funds by him as such treasurer, sufficiently definite; and we are also of the opinion that it was not only proper, but important that the sureties on the two bonds should be brought together in one suit, in order that their respective rights.and liabilities might he determined. — County of Dallas v. Timberlake, supra.

It was decided in the case of the County of Jackson v. Derrick, supra, that the fine and forfeiture fund belonged to the county, and that a suit in relation thereto, where the same had been misappropriated or misapplied by the county officials, was properly brought in the name of the county. The bill is therefore not multifarious in that it seeks an accounting against the defendant for a misappropriation by him as treasurer of such county of the two funds, that is, of the general fund belonging to the county, and the fine and forfeiture fund of such county.

We think every other question raised by the demurrer in relation to the fine and forfeiture fund, has been settled by this court in the case of Jackson County v. Derrick, supra, and adversely to the respondent. The clmncolloi* committed no error in overruling the de-, murrer and the motion to dismiss for want of equity. The decree of the chancellor is affirmed.