38 S.E. 124 | S.C. | 1901
March 14, 1901. The opinion of the Court was delivered by The following statement of facts is printed in the "Case" as agreed to by both appellants and respondents: "This is an action commenced on May 5th, 1898, against the sureties on the official bond of David Johnson, jr., as judge of probate for Union County, for the *484 penalty for breaches thereof, and to recover the interest of the relators, plaintiffs, in a fund arising from the sale of the real estate of Isaac Peeler, deceased, made by the probate court in an action brought therein for the partition of said real estate amongst the heirs at law of said Isaac Peeler. The bond was conditioned for the faithful performance of the duties of the said office as then or thereafter required by law during the whole time and period he should continue in said office. The complaint alleges this fund to have been received by David Johnson, jr., as judge of probate in his official capacity, and alleges as breaches of the bond that he failed to pay over to his successors in said office or the parties entitled thereto, the fund so received, and failed to pay relators, plaintiffs, their shares thereof. The case came on to be heard before Judge James Aldrich at the June term of Court, 1900. Upon the reading of the complaint, defendants interposed an oral demurrer thereto upon the ground that it did not state facts sufficient to constitute a cause of action, because it was alleged therein that the fund alleged to have been received, and the failure to pay over and legally administer which constituted the alleged breaches of the bond, was the proceeds of the sale of real estate sold by the probate court for partition between the heirs at law of Isaac Peeler; and as the probate court had no jurisdiction in partition of land, neither the receipt of the fund by the probate court arising from such sale nor its failure to administer it according to law, could under any circumstances fix any liability upon the sureties upon his official bond. His Honor upon the ground above stated alone sustained the demurrer and dismissed the complaint by the following order (title omitted): `Upon the call of the above stated case, the attorneys for the defendants interposed a demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendants. After argument of counsel, it is ordered, that the demurrer be sustained and the complaint dismissed with *485 costs. James Aldrich, presiding Judge. June 25th, 1900.'"
From this order the plaintiffs now appealed on the following allegations of error:
"1. In sustaining the demurrer and dismissing the complaint.
"2. In holding that the fund sued for being the proceeds of real estate sold by the probate court for partition, the sureties on the official bond of the probate judge could under no circumstances and in no event be liable therefor.
"3. In not holding that if the fund was the proceeds of real estate sold by the probate court for partition previous to November 27th, 1878, the probate court had or would be held to have had jurisdiction of the subject matter, and could officially receive the proceeds of sale and take securities for the purchase money, payable to the probate judge and his successors in office; and that if David Johnson, jr., as judge of probate, received any such funds or collected any such securities and failed to administer the fund according to law, the sureties on his official bond would be liable therefor, and that the plaintiffs had the right so to show (the complaint alleging the money was received officially), and in not overruling the demurrer on this ground.
"4. In not holding that if the sale under decree in partition was made by the probate court before November 27th, 1878, the judgment and sale must stand as an official act to protect the rights of all parties vested by such judgment and sale, and it was the duty of the probate court to receive, secure and administer the funds officially, and plaintiff had the right so to show, and in not overruling the demurrer on that ground.
"5. In not holding that the decision in Davenport v. Caldwell,
"6. In not holding that David Johnson, jr., as judge of probate, had the right, and it was his duty, to collect and receive the proceeds of bonds and mortgages securing such fund turned over to him by his official predecessor, and payable to one as probate judge or his successors in office; and if he in fact so received such monies, the sureties on his official bond would be liable, or at least that they would be liable upon the ground that he had received the same as had his predecessor in office virtute officio, and the plaintiff had the right so to show, and in not overruling the demurrer on this ground.
"7. In not holding that if the general statement, `that the funds were received officially,' was insufficient, plaintiffs might amend, and in not allowing them to do so."
In disposing of these exceptions, we may remark that the agreed statement of facts, as the same appears in the "Case," must govern us in our present investigation, and in this statement it nowhere appears that David Johnson, jr., as probate judge, sold the lands of Isaac Peeler, deceased, for partition among the heirs at law; but it does appear in such statement that he received the proceeds of the sales of the lands of Isaac Peeler, deceased, when sold for partition. If the allegations of the complaint were not sufficiently definite in this regard, it was the duty of the defendants to move to make the complaint more definite, and not to have demurred. However, it is very certain that ever since the cases of Herndon v. Moore,
Such being our views, it necessarily follows that the 2d 3d 4th, 5th, 6th and 7th exceptions must be sustained; but the first exception is overruled because it points out no specific error.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the action be remanded to the Circuit Court for a new trial.