Mendocino County v. Morris

By the Court, Sawyer, J.: This action is against the principal and his sureties on the official bond of the County Treasurer of Mendocino County. The appeal is from the judgment, and there being no statement or bill of exceptions, the only questions presented arise on the judgment roll. There was no error in overruling the demurrer to the complaint. A copy of the bond purports to be annexed to the complaint as Schedule A. Said copy does not contain the signature of Morris, the principal. It is claimed that there is no cause of action shown against Morris for the want of his signature, and that, for the same reason, the bond is void as to the sureties. It is unnecessary, however, to determine the effect of the failure of the principal to execute the bond. The complaint distinctly avers the execution of the bond by all the defendants. The defendants, in their answer, have taken issue upon the averments, and the verdict is in favor of the plaintiff on the issues. It must be presumed that the omission of the name of the principal in the copy appended to the complaint is a clerical error. Upon [148] the demurrer, in the form adopted in this case, the direct averment of the execution of the bond in the body of the complaint must prevail, as against the omission of- the signature in the copy appended. It may be that there is a want of correspondence between the averment in the body of the complaint and the copy annexed, but if so, the most that can be said is, that the complaint is ambiguous in this, respect, and this objection was not specified as a ground of the demurrer under any head. The grounds of the demurrer relied on were all particularly specified, and this is not one of them. The objection is raised for the first time in this Court. The demurrer is not general, that the complaint does not state facts sufficient to constitute a cause of action, but, that it does not state facts sufficient to constitute a cause of action in certain specified particulars. There was a good averment of the execution of the bond in the body of the complaint, and no objection appears to have been taken in the Court below on the ground of want of correspondence between the bond set out and the averment, and we think the complaint good, at least after verdict. Had the objection been taken in the Court below, the clerical omission of the signature of the principal in the copy, if it be one, might have been corrected. The facts set forth, we think show, a breach of the condition of the bond and a cause of action. The moneys for which the Treasurer is in default are alleged to belong to the County of Mendocino, and the action is properly brought in the name of the county. The fact that the bond was approved by the County Judge, instead of the Board of Supervisors, is no defense to the action. The liability of the sureties does not depend upon the approval of the bond by the proper officers. (People v. Edwards, 9 Cal. 286; People v. Evans, 29 Cal. 436.) Besides, although the bond appears, to have been approved by the County Judge, there is nothing in the record to show that it was not also approved by the Board of Supervisors. Ho question of this kind appears to have been raised in the Court below. The action is on the bond for damages resulting from a [149] breach of its conditions. The bond contains no covenant to pay in coin. The judgment for coin, as to the sureties, is erroneous for reasons stated in the case of Fox v. Minor, ante, 111. It may be that a judgment for coin could be recovered against the principal in a proper suit for the moneys received by him in his fiduciary capacity; but this is not an action of that kind. Morris is sued with his sureties as one of the obligors on the bond only. The bond alone is the basis on which the action rests; and, in a suit upon the bond, all the parties stand upon the «same footing, and are entitled to rest on the terms of the undertaking. The only recovery that can be had on the bond is the damages resulting from the failure of Morris to discharge his duties in the mode prescribed by law; and the damages can only be required to be paid in money generally, according to the terms of the bond. We observe that, in some cases brought before us, the officers approving official bonds have required them to be made payable in coin. This practice seems to be a safe precaution. All that portion of the transcript after folio sixty-nine, except the notice of appeal, was improperly inserted. It constitutes no part of the record on this appeal. The judgment of the District Court is modified by striking out all those portions directing payment to be made in coin, and costs are awarded to appellant, except as to that portion of the_ transcript improperly inserted, as indicated in this opinion.