98 S.E. 864 | S.C. | 1919
April 6, 1919. The opinion of the Court was delivered by This is an action against the sureties on the last official bond of the late W.W. Huckabee, as sheriff of Kershaw county. He was appointed in October, 1912, to fill an unexpired term, and was elected in November of the same year for a full term, and was commissioned January 1, 1913. He was re-elected, in November, 1916, and commissioned on February 8, 1917, having given the bond here sued on, dated February 1, 1917. He died in office April 18, 1917. On September 17, 1915, the county treasurer turned over to him tax executions for the year 1914, amounting to $11,319.94, and on May 2, 1916, executions for the year 1915, amounting to $11,777.44. On none of these executions did he ever make any return or report to the treasurer.
Upon investigation made after his death, it was found that he had collected $6,492.03 of the executions for 1914, and $4,426.45 of those for 1915, and that he had to his credit in bank $2,149.11, leaving a deficit of $8,769.37. It was also found that some of the executions that had been turned over to him were missing. These amounted to $591.13, making a total shortage of $9,360.50.
The defendants offered no testimony, and the attorney general moved for a directed verdict for the amount of the shortage proved, contending that it should be presumed, in the absence of proof to the contrary, that the entire default occurred during the last term. To this defendants objected, and contended that the evidence adduced made an issue of fact for the jury whether the default occurred during the last or the term previous to the last, and that, if the jury should find that it occurred during the previous term, they would not be liable, but the liability would fall upon the sureties of the bond for that term. The Court sustained the contention of the attorney general and directed a verdict accordingly. From judgment thereon defendants appealed. *168
There was no error in admitting a certified copy of the bond, instead of requiring production of the original. The statute (section 663, vol. I, Code 1912) provides that such a copy shall be good and sufficient evidence.
Nor was there error in holding that proof that executions that had been turned over to the sheriff were missing was sufficient prima facie to fix liability for them upon his bondsmen; for, according to the statute, it was the duty of the sheriff to collect the executions turned over to him, or return them to the treasurer, within 90 days, with his reasons for failing to do so. Therefore, the burden was upon him and his bondsmen to account for them or rebut the prima facie proof of liability in some way.
But the Court was in error in directing the verdict because the evidence made an issue of fact as to whether the defalcation occurred in the last term, or in the term previous to the last. While it is true, as held in State v. Edwards,
In State v. Causey,
As pointed out in State v. Causey, supra, the sureties on the last bond may be liable, as for a secondary default; that is, for the failure of the sheriff, at the beginning of his last term, to collect from himself, or the sureties on the bond of the previous term, the money which it was his duty to turn over to himself as his own successor. As was there said, if another person had succeeded to the office, this would have been his (the succeeding officer's) obvious duty, and the obligation is the same on one who succeeds himself. If, therefore, it should turn out that loss has occurred from the negligence of the sheriff to perform that duty, as, for instance, if it shall appear that the sureties on that bond have, in the meantime, become insolvent, then the sureties on the last bond would be liable, as for the secondary default.
But obviously that liability cannot be imposed upon them in this case, in the present state of the pleadings and parties; *170 for no such default is alleged in the complaint, and the sureties on the bond of the previous term are not before the Court. The sureties on both bonds have the right to be heard upon the issues arising as to their liability as between themselves. As was held in State v. Causey, the question whether the liability of the two sets of sureties, as between themselves is primary or secondary, is not founded on contract, but is an equity which may be established by parol testimony. It follows that the sureties on both bonds should be before the Court, in order that the rights, equities, and liabilities of all parties may be finally determined.
The judgment of the Circuit Court is, therefore, reversed, and the case is remanded for a new trial, with leave to plaintiff to amend by bringing in the sureties on the previous bond and by alleging the secondary default mentioned.
Judgment reversed.
MESSRS. JUSTICES FRASER and GAGE concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS did not sit.