Fidelity & Deposit Co. v. Beale

Keith, P., delivered the opinion of the court. It. H. Stuart was the treasurer of Westmoreland county. A. C. Brown was his deputy, who gave a bond with the Fidelity and Deposit Company as his surety, conditioned to reimburse the principal to the extent of $4,000 such pecuniary loss as he might sustain by any act of larceny or embezzlement upon the part of A. C. Brown in the performance of his duties as deputy treasurer of B. H. Stuart, treasurer of Westmoreland county, for the year beginning-October 22, 1900, and ending October 22, 1901. On the 13th of November, 1902, B. TL Stuart caused a notice to be served upon his deputy, A. C. Brown, that he would move the County Court of Westmoreland county to give judgment against him and the surety for a sum not exceeding $1,800, for which Brown had failed to account, being part of the taxes for the year 1900. The Fidelity and Deposit Company having accepted service of the notice of this motion, certain proceedings were had, which need not now be considered. [302] Thereafter the Fidelity and Deposit Company gave notice to A. C. Brown and R. H. Stuart that it would, on the 23d day of January, 1903, apply to the judge of the Circuit Court of Westmoreland county for a writ to prohibit and restrain the County Court of Westmoreland county and the parties to the proceeding from taking further jurisdiction oyer the Fidelity and Deposit Company in the motion pending in said court under the style of R. H. Stuart v. A. C. Brown and the Fidelity and Deposit Company. In pursuance of this notice, a formal petition, praying that the writ of prohibition issue, was filed. R. H. Stuart appeared, demurred and answered, and upon these pleadings the judge of the Circuit Court in vacation denied the writ, and to that order a writ of error was awarded by one of the judges of this court. It is claimed upon the part of the Fidelity and Deposit Company, that, inasmuch as judgment is asked for more than one hundred dollars, the County Court has no jurisdiction to entertain the motion, while defendant in error relies upon sections 910 and 912 of the Code, which are as follows: “If any deputy of a sheriff, sergeant, or other officer commit any default or misconduct in office, for which his principal or the personal representative of such principal is liable, or for which a judgment or decree shall be recovered against either, such principal or his personal representative may, on motion, obtain a judgment against such deputy and his sureties, and their personal representatives, for the full amount for which such principal or his personal representative may be so liable, or for which such judgment or decree may have been rendered. But no judgment shall be rendered by virtue of this section for money for which any other judgment or decree has been previously rendered against such deputy or his sureties, or their personal representatives.” “Any motion under either of the two preceding sections may be made in the court of the county or corporation, or in the [303] Circuit Court of the county or corporation, in which the default or misconduct of the -deputy occurred or was committed.” The office of the writ of prohibition is not to correct error, but the sole question is, whether the proceeding sought to be prohibited is in excess of the jurisdiction of the court or judge to whom it is directed. Hogan v. Guigon, 29 Gratt. 705. If the County Court had jurisdiction to enter any judgment upon the notice presented for its consideration by B. H. Stuart, the petition for a writ of prohibition was properly rejected. Counsel for plaintiff in error relies upon that clause in section 910 of the Code which says, that in case of default of the deputy the principal may obtain a judgment against him and his sureties “for the full amount for which such principal or his personal representative may be so liable,” and points out that the contract of indemnity in this case is not for the faithful performance of duty by A. C. Brown, as deputy treasurer of Westmoreland county, but that the guaranty company only undertakes to provide indemnity for the principal for acts of larceny or embezzlement upon the part of the employee in the performance of his duties as deputy treasurer. It is true that the surety or guarantor can only be held by the express terms of his contract, and it may be that there would be one measure of recovery against the principal under this notice, and another measure of recovery against the guarantor or surety. Derelictions of duty on the part of the deputy which could not be classified as acts of larceny or embezzlement would not be within the undertaking on the part of the Fidelity and Deposit Company, but this consideration is wholly independent of the general jurisdiction of the tribunal in which the principal, B. H. Stuart, seeks redress for the default of his deputy. It grows out of the contract between the parties. The law did not require Stuart to take any bond from his deputy. In his effort to protect himself against the delinquencies of his deputy, he was at liberty to take a bond with such conditions as to him seemed best. He could [304] have required the surety to indemnify him against all defaults in the performance of his duties, but he contented himself with taking indemnity only against his acts of larceny and embezzlement. It is not perceived that this can affect the jurisdiction of the tribunal in which he seeks to secure such indemnity as he is entitled to demand by virtue of his contract. If the County Court has jurisdiction over the subject, it would proceed in the same manner, be controlled by the same mode of procedure, be governed by the same law in ascertaining the rights of the parties, and enter the same judgment as would, under like conditions have been rendered in the Circuit Court. Section 912 expressly provides that any motion under sections 910 or 912 may be made in the County Court of the county or corporation, or in the Circuit Court of the county or corporation in which the default or misconduct of the deputy occurs or was committed. That section has been construed by this court in Hall v. Ratliff, 93 Va. 327, 24 S. E. 1011, in which the jurisdiction of a county court over a motion by a county treasurer against his deputy and sureties is fully sustained. “Whether or not the deputy has committed any default or misconduct in office, and to what extent, if any, his sureties are liable to the principal,” are questions, which, as counsel for defendant in error has well said, “can only be determined by the evidence introduced on the trial of the motion, of which the bond, upon which it is sought to hold the surety liable, would form a part.” The general jurisdiction of county courts in respect to pecuniary matters is limited to one hundred dollars. When, therefore, it was determined to give those courts jurisdiction over controversies between sheriffs, sergeants, or other ofljcers, and their deputies on account of their default or misconduct in office, it was provided that the judgment might be “for the full amount” in controversy. It seems plain that this language was used not as a limitation upon the jurisdiction of the county courts, and as operating to confine their jurisdiction within a class of cases in [305] which the liability of the deputy and his sureties would he coextensive, hut was necessary and proper by reason of the fact that under the general law the jurisdiction of county courts with respect to matters merely pecuniary was limited to sums not greater than one hundred dollars, whereas with respect to matters embraced in section 910 it was the purpose of the Legislature that the county courts should have jurisdiction over them without respect to the amount involved. There is no error in the judgment of the Circuit Court, and it is affirmed. Affirmed.