63 Ark. 337 | Ark. | 1897
(after stating the facts.) The statute requires each treasurer, before he enters upon the duties of his office, to enter into bond that he will truly account for and pay over all money that may come into his hands as treasurer. Sec. 979, Sand. & H. Dig. The complaint alleges that Wood and his sureties made a bond, which was approved by the county judge in vacation; that the bond was filed with the clerk; and that Wood entered upon the duties of the office of treasurer. The answer admits these allegations, except that the bond was approved by the county judge in vacation, which it denied. Now, as the treasurer could not legally enter upon the duties of his office without a bond approved by the county or circuit judge in vacation, inasmuch as it is admitted that he did enter, and there is nothing in the pleadings to show that his bond was not approved by the circuit judg-e in vacation, a provisional acceptance of the bond may be presumed. From the terms of the bond itsélf, which are according to the statute, the treasurer and his bondsmen are liable for all funds which come into his hands as treasurer while the bond was in force, and which he failed to account for and pay over. This, notwithstanding said funds may not have been lost, stolen, or appropriated by the treasurer, as is alleged in the answer, until long after the rejection of the bond, and after the expiration of the time prescribed by law for filing a new one. But the answer expressly alleges, and the demurrer admits, that the bond sued on. was rejected by the circuit court March 2, 1883, and that defendant was ordered to file new bond in fifteen days thereafter. So his sureties were not liable for any funds which may have come into the hands of Wood after that time, unless they are to be held liable upon an instrument which had been rejected. But, upon elementary principles, that cannot be. When the party named as obligee refuses to accept, the parties signing as obligors are not bound. The statute makes the office vacant if sofacto upon rejection of the bond by the circuit court and a failure to give new bond in fifteen days. Sec. 5399, Sand. & H. Dig.; Ex parte Lowman, 42 Ark. 372. See also Falconer v. Shores, 37 id. 392; Oliver v. Martin, 36 id. 134. Besides, the complaint alleges that the office became vacant, but does not show when the vacancy occurred.
After the bond had been rejected by the circuit court, and the fifteen days had expired, the treasurer could no longer claim or exercise any right under it, and his sureties were no longer bound by it. The cases of Wood v. Auditor, 2 Ark. 73, and Taylor v. Auditor, 2 Ark. 174, respectively, relied upon by appellee, cannot control this question. When they were, decided, there was no statute like that sufra, and in them no question as to the effect of an affirmative rejection of the bond was raised. In the former facts were stated from which an acceptance would be presumed, and in the latter the demurrer simply raised the question of a failure “to acknowledge and approve.” Here the record shows affirmatively that the bond was rejected by the circuit court, the only duly accredited agent of the state for accepting such instruments. The general allegation in the answer that the bond was “executed” cannot be taken in the technical sense that the instrument was both signed and delivered, except as it may refer to the provisional acceptance, for there is a specific allegation in the answer “ that the bond was presented to the circuit court for approval, and was by it rejected.” This the demurrer admits. Authorities cited in brief of counsel for appellee clearly establish the views we have expressed.
Since the answer shows that the bond was rejected, and denies liability thereafter, and the complaint shows that funds came into the hands of the treasurer after his office became vacant, as stated in his answer, and fails to show that any funds came into the hands of the treasurer before it was rejected, it follows that the answer states a good defense, and the demurrer should have been overruled.
Reversed, and remanded, with directions to overrule the demurrer, and to allow plaintiff to amend if desired, and for further proceedings.