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People v. Stacy

74 Cal. 373 Court Cal. Decision date 1887-12-21 Docket No. 12137 English

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p. 373
[No. 12137.
In Bank.
December 21, 1887.]
THE PEOPLE, Respondent, v. E. E. STACY et al., Appellants.

Headnote

Oppicial Bond—License Collector—Form op Bond—Action on mat bb Brought bt State. —The board of supervisors of a county has authority to appoint a collector of license taxes, and the bond given by that officer for the faithful performance of his duties is an official bond, and under section 958 of the Political Code should be made payable to the state of California. And under section 369 of the Code of Civil Procedure, an action to enforce such a bond is properly brought in the name of the state.
p. 374
Id. — Sureties — Liabilitz oz Those Signing. — Sureties signing an. official bond without affixing any condition or limitation to their liability are jointly and severally liable thereon alter its acceptance and approval, although a person named in the body of the bond as surety did not sign it, and although as to one of the sureties signing no sum was stated in the bond for which he was bound.
Appeal from a judgment of the Superior Court of San Bernardino County.
The facts are stated in the opinion.
H. O. Rolfe, and G. J. Perkins, for Appellants.
Attorney-General Johnson, and Andrew B. Paris, for Respondent.

It is alleged in the complaint that on the third day of August, 1885, one H. T. Walker was appointed by the board of supervisors of San Bernardino County a license-tax collector for the first supervisoral district of that county; that to secure the faithful performance of the duties of the office, Walker gave a bond in the penal sum of three thousand dollars, which was accepted and approved by the chairman of the board; and that subsequently one of the sureties on his bond withdrew, and he thereupon gave a supplemental bond, which was also acceptéd and approved by the chairman of the board. It is further alleged that Walker, while acting as such tax collector, collected the sum of $1,650.50 for licenses, and that he converted the money to his own use, and failed to pay over any part of it to the county. This action was brought against the sureties on his bonds to recover the amount of money alleged to have been so collected and appropriated. In the court below, judgment was rendered in favor of the plaintiff, and from that judgment the defendants have appealed.

p. 375
the board of supervisors had authority to appoint a collector of license taxes (People v. Ferguson, 65 Cal. 288 ; County of Amador v. Kennedy, 70 Cal. 458 ), and the bonds given by their appointee for the faithful per-1 formance of his duties were official bonds. (Hubert v. Mendheim, 64 Cal. 213 .) The Political Code provides that “ all official bonds must be ... . made payable to the state of California” (section 958), and “every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein to and for the state of California, and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity.” (Sec. 961.) The Code of Civil Procedure also provides that “ an executor or administrator, or trustee of an express trust, or the person expressly authorized by statute, may sue without joining with him the persons for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section.” (Sec. 369.) ¡Now, the contracts sued on in this case were made in the name of the state for the benefit of the county, and an action upon them was therefore expressly authorized to be brought in the name of the state. (See Shelby Co. v. Simmonds, 33 Iowa, 345 .)

2. It is further claimed that the original bond was void because one William Reed was named as a surety in the sum of one thousand dollars in the body of the bond, but never signed it; and because one C. P. Hall signed the bond, but no sum was stated in the body of it for which he was bound. The principal was bound in the sum of three thousand dollars, and each of the sureties in the sum of one thousand dollars; and so far as appears, there were no conditions or stipulations by the sureties,, when they signed, requiring other signatures or affixing any limitations to their liability. The

p. 376
sureties became therefore jointly and severally liable on the bond when it was accepted and approved. (Pol. Code, sec. 956.) A bond signed under such circumstances is valid as against the parties signing it. It was so held in Los Angeles v. Mellus, 59 Cal. 444 , where similar objections were made to the bond involved in that case. (See also State v. Pepper, 31 Ind. 76 .) The objections of appellants cannot therefore be maintained; and as the foregoing are the only points made by them, the judgment should be affirmed.

Hayne, C., and Foote, C., concurred.

The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.

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