City of Elberton v. Jones

Jenkins, P. J. This was a suit by the City of Elberton against W. E. Jones, its former clerk and treasurer, as principal, and his sureties, on the official bond attached to the petition, which was dated March 3, 1931, and which recited and provided as follows: “William E. Jones having been elected by the city council city clerk and treasurer of the City of Elberton on the 17th day of January, 1931, to serve till the first Monday after the second Wednesday in January, 1933, now should the said William E. Jones, city clerk and treasurer aforesaid, well and faithfully perform the duties of said office in accordance with the ordinances of the City of Elberton, and at the termination of his term of office turn over to his successor all bonds and mortgages, moneys, books, and all other property of said city pertaining to the said office of city clerk and treasurer, then this bond to be void, else of full force and effect.” The charter of the City of Elberton provides that “all subordinate officers or such as are elected or appointed by the council shall hold their office at the will of the council and receive such salary as may be fixed by the council, each of whom shall take an appropriate oath before entering upon the discharge of their [538] respective duties, and shall give bonds as the council may require,” Ga. L. 1898, pp. 179-80, sec. 1- Thus, while the petition alleges that the treasurer had failed to give any subsequent -bond, it fails to allege that he had not successively qualified under his subsequent elections, by taking the oath of office, nor is there any allegation to the effect that upon thus successively qualifying by virtue of such subsequent elections, the city council required, as it was empowered to do, the giving of a bond for the faithful performance of the duties of his office during such subsequent term. It appearing from the face of the petition that the alleged defalcation took place long subsequent to the original term of office to which the obligation of the bond was expressly limited, and that such alleged defalcation occurred during terms of office to which the official was subsequently elected, the petition was dismissed on general demurrer, the learned trial judge embodying in his judgment a statement of the legal principles governing his decision. Judgment affirmed. Stephens and Bell, JJ., concur.