United States Fidelity & Guaranty Co. v. Adams County

63 So. 192 | Miss. | 1913

J. B. HabRis, Special Judge,

delivered the opinion of the court.

The charter of the city of Natchez is a special one, and as amended provides for the election of a police justice, Avho shall he ecc-officio justice of the peace within the corporate limits of the city. The creation of this office seems to have been by an ordinance amending the charter, hut no question was raised in the court below, or raised here, as to the validity of the ordinance creating this office; but for the purpose of this case it is admitted by the parties that the ordinance is valid, and it is not deemed neo-essary, therefore, for this court to pass upon this question.

The ordinance creating the office and defining its duties provides that the police justice shall give bond in the sum of two thousand dollars for the faithful performance of Ms duties. In 1910 one E. S. Dorsey was duly and legally elected police justice for a term of two years, beginning on the second day of January, 1911, and executed a bond as required by the charter with the appellant, the United States Fidelity & Guaranty Company, as surety, and entered upon the discharge of the duties of the office, both as police justice and as ex-ojficio justice of the peace. The bond was made payable to the city of Natchez, and recited that Dorsey had been duly elected police justice of the city of Natchez, and was conditioned upon the faithful performance by Dorsey “of the duties of said office.” Dorsey died in October, 1911, and it was then ascertained that he had failed to pay over and account for certain fines collected by him as police justice, and also for certain fines collected by him in his capacity as justice of the peace.

The city of Natchez brought suit at law on the bond for the recovery of the fines collected by him as police justice, which were due the city of Natchez. Subsequently the county of Adams filed a bill in the chancery court of Adams county against appellant, seeking to recover the fines and certain costs collected by Dorsey in his capacity as justice of the peace which he had failed to turn over and account for to the county of Adams, as required by law. A list of the specific cases in which these fines and costs were claimed to have been imposed, giving the amounts thereof, was filed as an exhibit to the bill. An answer was filed, and by agreement the evidence was taken orally in open court on the hearing. A decree was rendered in favor of the county of Adams against the appellant for the amount claimed, and from this decree this appeal is prosecuted.

There are several assignments of error, but the underlying and fundamental question presented is whether the bond executed by Dorsey, covering his acts and duties as justice of the peace, inured to the benefit of the county of Adams; in other words, were the acts performed by him as justice of the peace part of the duties of the office to which he was selected, for the faithful performance of which the bond was executed? We think this question must be answered in the affirmative. The functions of the office of justice of the peace inhered in the office of police justice by operation of law. They were an inseparable part of the duties of the office to which he was elected. They were superimposed upon the other functions of the office by the provision of the charter creating the office, and therefore covered by the bond. See Brown v. State, 75 Miss. 842, 23 South. 422; Mechem on Public Office, section 285. The fact that the bond was made payable to. the city and Natchez and not to the county of Adams is immaterial. See section 1022, Code 1906. This disposes of the first, third, fourth, and fifth assignments of error.

The second assignment of error is that the suit by the county of Adams could not be maintained, because a suit had been brought in the name of the city of Natchez and' a recovery had. We think this assignment of error is without merit, because it appears that the suit brought by the city of Natchez was for the recovery of fines and moneys due to it collected by Dorsey and not turned over or accounted for by him, and it in no way embraced the amount due to the county of Adams or covered the delinquency of Dorsey to it. The county of Adams was not a party to the suit, and in no way precluded by the judgment therein; but the bond being for the benefit of the county of Adams, as well as for the city of Natchez, the county had a right to maintain a separate action on account of the delinquency of Dorsey as to it. While the bond inures to the benefit of two different parties, the cause of action is in no sense joint, and. the suit by the city of Natchez in no way affects the right of the county, but maintains a separate action.

It appears from the transcript that some of the records in the cases in which it is claimed in the bill that fines had been collected and not turned over had been lost or destroyed, and the justice of the peace’s docket, which was kept separate from the police justice’s docket, contained no entries of the imposition of the fines, or the collection of them. The complainant introduced Mr. Shields, the county attorney, who testified that he had personally made out most of the affidavits in the eases, and had actually, prosecuted some of them; that it was agreed between himself, Dorsey, and the city marshal that if the parties pleaded guilty they should be fined fifty dollars and costs in each case; and that Dorsey had afterwards reported to him that the parties, had pleaded guilty, and that the fines and costs had been paid to him. The city marshal was then introduced, who corroborated Mr. Shields, and stated that Dorsey had also reported to him that he had collected the fines and costs, and had actually paid to him his costs in the case. The complainant then introduced several of the parties who had actually paid the fines, who testified to having paid them and the costs. The defendant moved to exclude the testimony of Shields and the city marshal upon the ground that the testimony was hearsay, and the court overruled its objection — we think properly.

The declarations as testified to were declarations against interest, which are always admissible upon the ground that, being against interest, the declarations are ^compelled by truth,” to use the language of Wigmore, who in his excellent work on Evidence lays down the rule as being settled that the declarations of a deceased principal debtor against his interest are admissible in a suit against the surety of the bond. See Wigmore on Evidence, section 1472. There was no attempt to contradict this testimony. It was corroborated by the state-meats of most of the parties who had paid the fines, that they had been actually paid; and we think it justified the chancellor in holding the surety liable. See Baldridge v. Stribling, 101 Miss. 666, 57 South. 658.

It is insisted in the brief for appellant, but not assigned for error, that no demand had been made, before bringing the suit, on the administratrix of Dorsey’s estate. We do not think this necessary as a condition precedent to the bringing of the suit. See 29 Cyc. 1464, 1465. .

It is also insisted that the suit should have been brought in the name of the city of Natchez. This, however, is a proceeding in the chancery court, and is covered by the case of Patty v. Williams, 71 Miss. 837, 15 South. 43.

.We find no error in the rulings of the court below, and the decree, is affirmed.

Affirmed..