10 S.D. 182 | S.D. | 1897
This is an action upon the official bond of William Walter Taylor as state treasurer. Taylor made no defense, but his sureties appeared and answered. The ' trial was to a jury, and a verdict was directed by the court for the plaintiff, and the sureties appeal.
The bond was in the usual form, except that the penally was $350,000, instead of $250,000, prescribed by the statute. At the close of the evidence the counsel for the state moved the court to direct a verdict for the full sum of Taylor’s defalcation, ascertained to be $344,277.45, to which the following objection was made. The sureties objected for the reason that they were not liable for a sum greater than $250,000, the amount of the bond prescribed by the statute. The objection was overruled, and the appellants excepted. The assignment of errors are that said circuit court erred in directing a verdict against said appellants for a sum greater than $250,000, and that said court erred in entering judgment for a sum greater than the penalty prescribed by the statute.
It is provided by Sec. 6, Chap. 93, Laws 1891, that the bond of the state treasurer shall be in the penal sum of $250, - 000. The learned counsel for the appellants contend that, as the penalty of the state treasurer’s bond is fixed by statute at $250,000, the court should have limited the recovery upon the bond in suit to that sum, notwithstanding the penalty specified