83 W. Va. 62 | W. Va. | 1918
This suit was instituted by John P. Austin against J. 0. McDermitt and the County Court of Mason County, its pur
The defendant county court filed an answer to the bill and denied that there was any error in the settlements in the particulars pointed out. It also filed an amended and supplemental answer in the nature of a cross-bill, which, after denying that there was error in the settlements in the particulars claimed by the plaintiff, alleged that there were errors in said settlements to its prejudice, and pointed out specifically a number of such errors, amounting in the aggregate to several thousand dollars, and asked that the settlements be corrected by charging the plaintiff with these amounts. The defendant J. O. McDermitt also filed an answer denying that
The settlement about which most of the contention arises was made in the fall of 1910, and the bill in this ease was not filed until May, 1914. It appears from the settlement made with Austin by the commissioners appointed for the purpose, in the fall of 1910, that there was charged to.him the sum of $17,687.03 as having been received from, the defendant McDermitt, his predecessor in office. This amount was, by the commissioners making the settlement, apportioned to various funds to which McDermitt was indebted, which apportionment is not at all material to the inquiry here. It appears that the total of $17,687.03 was made up of four different items: the first being an item of $12,086.97, evidenced by a receipt dated February 28, 1910, given by Austin to Mc-Dermitt; the next an item of $1,100.06, as of May 16, 1910; and the next an item of $1,500.00, as of May 26, 1910; and the last item entering into this total being $3,000.00, as of September 21, 1910. The bill does not attack the three latter items entering into this total of $17,687.03, but it does attack the item of $12,086.97, and it is contended in the bill, first, that no such receipt was ever given; and second, that if it ever was given, it was procured from Austin by fraud. Austin in his testimony, however, on being'shown the receipt, admits its genuineness, but claims that he never received any consideration for it, and asks to be relieved of the charge of $12,086.97 which was made against him on account of that receipt. As before stated, Austin testifies that he never received from McDermitt anything of value for the receipt given, but he does not attempt to state in his evidence the circumstances under which he gave this receipt, nor the reason therefor. In fact, he could not very well do so after having averred in his bill that he never gave any such receipt, and if there was such a receipt it was procured from him by fraud. The evidence upon which he relies to impeach the settlement in this regard, and to overthrow the receipt, is his own declaration that he never received anything from McDermitt for the receipt; the statement of his office deputies that no amount of money or drafts, or other credits,
His next complaint is that he has been charged with
The third item, which it is claimed constitutes a mistake in the settlement, is the difference between commissions at seven and one-half per cent, and five per cent, on the amount-of the road fund for the year 1909. The commission to which Austin was entitled on those funds was seven and one-half per cent. Nease v. Smith, 70 W. Va. 325. It clearly appears from the face of the settlement itself that an error was made in the same in this respect to Austin’s prejudice.
The fourth alleged error in the settlements is an alleged overcharge claimed to have been made against Austin on account of funds received from the assessor for capitation taxes. Austin’s contention is that there was turned over to him on this account only the sum of $1,705.04; while the settlements charge him with the sum of $2,386.80. He swears that he received only the former amount, and that he knows this from the fact that all funds turned over to-him by the assessor were deposited by the assessor in the bank to his credit, and he introduced his deposit slips to show that only the sum of $1,705.04 was so deposited. It must be borne in mind that this settlement was one deliberately made between the parties presumably with full knowledge of all the facts, and the one seeking to overthrow it should offer the most satisfactory proof obtainable to that end. The assessor is not introduced to show what payments he made to Austin. The law requires that duplicate receipts be given for such payments, and that one thereof be filed in the county clerk's office. These receipts are not introduced, nor is their absence accounted for. The law also requires the sheriff to keep/books of account showing all items received by Mm and from what source. These books are not intro-
The last item in which it is claimed there is an error is a failure to allow Austin credit for interest paid by him on a county order which had been presented to and endorsed by his predecessor in office. The proof is clear that this interest was actually paid by Austin when the order was taken’up. Why it was not allowed to him in the settlement does not appear. It is, however, clearly shown by the settlement itself that it was not allowed. Patently it was an oversight upon the part of the 'commissioners and Austin at the time of making the settlement, and such a mistake as could be corrected. The two errors in the settlements above noted could easily be corrected without having a new statement made of the accounts, but would this meet the requirements of justice? It must be borne in mind that the county court has filed an answer in the nature of across-bill challenging the correctness of the settlements in many particulars, the mistakes charged ranging from a few cents to several thousand dollars. No denial is made that the settlements are wrong in the particulars pointed out by the county court. To correct these alleged errors would require a re-examination of
Reversed and remanded.