County of Sullivan v. Middendorf

Opinion by Smith, J., A judgment for the plaintiff is based on the right of action set forth in the declaration, and cannot be extended beyond it. This is an elementary principle, illustrated in a long line of cases, from Gordon v. Kennedy, 2 Binn. 287, to Acme Co. v. Reed, 181 Pa. 382. If the declaration lacks the essentials of a cause of action, in matters of substance, judgment for want of an affidavit or of a sufficient affidavit of defense will be reversed : Camp v. Bank, 10 Watts, 130; Gould v. Gage, 118 Pa. 559; Acme Co. v. Reed, supra. And such defect will be fatal also in arrest of judgment or on error: Gordon v. Kennedy, supra; Clay v. Irvine, 4 W. & S. 232; Maher v. Ashmead, 30 Pa. 344. In the present case the plaintiff’s right to judgment must be tested by the cause of action as set forth in the declaration. It is based on the bond of the defendant Middendorf, as collector of taxes, and his default in not accounting for a portion of the [73] taxes collected. If this default is a breach of the condition of the bond, a good cause of action is shown. But so far as it may lie beyond the scope of the condition, it presents no cause of action. The Act of June 6, 1893, P. L. 333, directs that on the third Tuesday of February following, and triennially thereafter, tax collectors shall be elected, who shall serve for the term of three years, and shall give a bond annually, to be approved by the court. The defendant Middendorf was elected in 1894. His bond, upon which this action is brought, recited that he had been “ duly elected, for three years, commencing April 1, 1894,” and its condition provides that the obligation shall be void if he “ shall well and truly collect and pay over or account for according to law the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him.” The declaration assigns, as breach of this condition, a failure to pay or account for $157.40 of the taxes charged in the duplicates for 1894, and $523.02 of the taxes charged in the duplicates for 1895. Judgment for the amount thus claimed, with interest, was entered for want of an affidavit of defense. It is contended that the plaintiff was entitled to such judgment, on the ground that the condition of the bond required the collector to account for the taxes charged in the duplicates delivered to him. We cannot regard this as the true measure of the obligation imposed on the defendants. The act of 1893 requires the collector to give a bond annually. By plain implication, this limits the liability on each bond to the taxes of the current year. There is nothing in the recital that the collector had been duly elected for three years to extend this liability beyond the year for which the bond was given. It had no greater effect than if it merely recited that he had been duly elected, since the law fixed his term at three years; it would be equally appropriate in a bond for the last year of the term. The condition does not require him to account for the taxes collected' during those three years. Had it done this, in express terms, the bond would undoubtedly have been good to that extent as a voluntary obligation, thougli beyond the requirements-of the law: Walters’ Appeal, 10 W. N. C. 146; Castor’s Appeal, 2 Penny. 337. The condition, however, followed the statute, and as a renewal of the bond each year is required by law, it must be construed as embracing only the [74] duplicates of the year for which the bond was given. This is the general rule relating to these obligations: Com. v. West, 1 Rawle, 29; Savings Loan Co. v. Hall Association, 48 Pa. 446 ; Bank v. Yard, 143 Pa. 129; Com. v. Stambaugh, 164 Pa. 437. It is obvious, therefore, that as to the taxes of 1895 the declaration sets forth no cause of action, and that the judgment, so far as it embraces those taxes, was erroneous. The plaintiff was entitled only to a judgment for the breach of the condition of the bond for the taxes of 1894. As to this the declaration avers a failure to account for $157.40, and for this amount, with interest from January 20,1895, the judgment should have been entered. Judgment reversed, and judgment is now entered for the plaintiff and against the defendants, as of October 2, 1897, for $182.88, the costs that have been made thereafter to be paid by the appellee.