State Ex Rel. Ellis v. Brown

Schenck, J. The action is by the State in behalf of the relators who were sureties on the official bond of the former clerk of the Superior Court of Gates County. The clerk defaulted and as a consequence the relators were compelled to pay a judgment against them amounting to $6,500.00 and $41.60 cost of court. Complaint is first made against the defendant Beamon, the county accountant, and the surety on his official bond, the defendant Fidelity & Casualty Company of New York, for failure to properly audit and supervise the accounts of Boyce, clerk of the Superior Court. The defendants Brown, Powell and Sawyer, as commissioners of Gates County, are also sought to be held liable as statutory bondsmen of the county accountant because they approved his bond for $4,000.00 when the statute required a bond in at least $5,000.00. The defendants Brown, Powell and Sawyer are joined additionally for employing incompetent accountants and failing to employ competent ones after discovering the neglect of both the clerk and the county accountant. The first cause of action alleged against the county accountant and the surety on his official bond is separate and distinct from the causes of action alleged against the commissioners of the county. The one sounds in contract; and the others in tort. The alleged liabilities are different; they arise out of different situations, and they do not affect all the parties to the action. Their inclusion in the same complaint therefore constitutes a misjoinder of causes of action, C. S., 507; Bank v. Angelo, 193 N. C., 576, and cases there cited; Street v. Tuck, 84 N. C., 605. We are also persuaded that there is not only a misjoinder of causes, but that there is also, a deficiency in the facts alleged to constitute any cause of action against the defendants. The proximate cause of the loss sustained by the relators was the defalcation of their own principal. Without this intervening, independent, wrongful act of a responsible agency or third person, no injury would have resulted from the matters and things of which the relators now complain, Butner v. Spease, ante, 82. The wrong alleged to have been committed and the loss alleged to have been sustained do not stand in the relation of cause and effect. The loss alleged to have been sustained by the plaintiffs was not the direct or immediate result of the defendants’ alleged acts. The only direct and immediate cause of the loss alleged to have been sustained by the plaintiffs was the dishonesty and embezzlement of the clerk, their principal, whose honesty and fidelity was the express obligation of their *790 undertaking. Tbe defendants could have done all that they are alleged to have done and have left undone all they are alleged to have left undone and yet no injury to the plaintiffs would have resulted; they could have observed the statutes to the very letter and the loss to the plaintiffs would have been the same. The clerk could have embezzled the funds with or without strict compliance with the statutes by the defendants. Therefore, there was no causal connection between the alleged acts of the defendants and the loss alleged to have been sustained by the plaintiffs. Hudson v. McArthur, 152 N. C., 445. The taproot of this case is the criminal conduct of the former clerk of the Superior Court of Gates County. The relators as sureties vouched for his honesty. They have stepped into his shoes and made good his peculations. Liabilities, and not rights, flow from criminality. Reynolds v. Reynolds, 208 N. C., 428. We conclude that the demurrers were properly sustained, and that the judgment dismissing the action should be affirmed. It is so ordered. Affirmed.