Globe Indemnity Co. v. O'Connor

O’NIELL, J. On the 12th of Jume, 1915, Robert E. O’Connor, a notary public for the parish of Orleans, made application to the Globe Indemnity Company for a bond for $10,000 for the term of five years. The application contained a covenant that the applicant would [197] not substitute another bond for the one applied for during the term of his office, without first notifying the company and having the company legally released from liability from and after the date of the new bond; and it was stipulated that if the applicant failed to comply with the covenant or any part of it, he should continue to pay the premium, $100 per annum. The bond was issued for the term of five years, commencing on the 21st of June, 1915; and O’Connor paid the first annual premium in advance, for the year ending on the 21st of June, 1916. On or about the 29th of May, 1916, the district attorney, pursuant to the provisions of the Act 42 of 1890, proceeded by rule in the civil district court against all notaries public for the parish of Orleans, including Robert E. O’Connor, to test the solvency of the sureties on their official bonds. The rule was made returnable on the 13th of June, but was continued to the 26th of June, 1916. The Globe Indemnity Company was not made a party defendant in the proceedings, nor called upon by O’Connor to appear in court to prove the company’s qualification as surety on the bond; nor did the company at any time appear in the proceedings or offer to make such proof. On the 21st of June, 1916, O’Connor wrote a letter to the Globe Indemnity Company, saying it would be unnecessary for the company to qualify as surety on his bond dated the 21st of June, 1915, because he was on that date giving-a new bond with another surety. The company replied that the mere filing of a new bond would not release the company as surety on the bond dated June 21, 1915, and that the company would not consent to release O’Con-nor from his premium agreement until June 21, 1920, unless he procured from the Governor of the state a release of the company as surety in the manner provided by law. O’Connor then wrote to the Governor and the secretary of state, asking for the release, but the reply was that the Governor was without authority to release the surety on the bond of a notary public, except in case of death or resignation from office. Thereafter, however, the secretary of state wrote O’Con-nor thus, “As far as this department is concerned, the filing of a new bond cancels the old,” which we take to mean that the secretary of state was satisfied with the new bond that O’Connor had filed, without regard for the liability of the Globe Indemnity Company as surety on the bond dated June 21, 1915. Eor O’Connor did obtain a new bond, with another surety, on the 21st of June, 1916, and had it approved by the presiding judge of the civil district court, in the proceedings which had been taken by the district attorney to test the sureties on notaries’ bonds; and O’Connor’s new bond was filed with the secretary of state, and has been tested and approved every year in the proceedings taken annually by the district attorney to test notaries’ bonds. The Globe Indemnity Company had, previous to the 10th of May, 1915, qualified in the ■ office of the secretary of state for doing business in Louisiana, and on that date filed in the civil district court for the parish 'of Orleans, in a proceeding by the district attorney to test the bonds of notaries public, a certificate of the secretary of state, showing that the company had qualified in the manner provided by Act No. 41 of 1894 and Act No. 71 of 1904, which certificate declared that it was good until the 31st of March, 1916, unless sooner revoked. Thereafter, that is, on the 16th of June, 1916, the Globe Indemnity Company filed in the civil district court, in the • proceedings instituted by the district attorney to test the bonds of notaries public, another certificate of the secretary of state, showing that the company was qualified to do business in this state, and that the certificate was good until the 31st of March, 1917, unless sooner revoked. [199] The certificate was offered and filed in the civil district court in obedience to rule 28 of the court, which we think pertains particularly, if not only, to bonds that may be required by an order of the court, not bonds of public officials generally,' viz.: “Surety companies tendered as sureties in this court will not be accepted unless proper proof of their qualification as such is filed and offered in the archives of the court.” The Globe Indemnity Company was not judicially declared insufficient or not a good surety on the bond dated June 21, 1915, because the district attorney and O’Connor were both satisfied with the decree of the civil district court approving the new bond, furnished by O’Connor on June 21, 1916. O’Connor refused to pay the $100 premium demanded by the Globe Indemnity Company on June 21, 1916, for the year ending June 21, 1917; and this suit was brought to collect the amount. The demand was rejected, and the suit was dismissed by the first city court; and, on appeal to the Court of Appeal, the judgment was affirmed. The case is before us on a writ of certiorari and review. Opinion. [1] The record does not contain any explanation or disclose any reason why O’Con-nor desired to furnish a new bond on the 21st of June, 1916, without having called upon the Globe Indemnity Company to appear in response to the district attorney’s rule in the civil district court, and prove the company’s qualification as surety on the bond dated June 21, 1915. It is not disputed that the company was at that time, and has been at all times since the bond was issued, qualified to do business in this state, according to the requirements of the statutes, and that the company could readily have proven its qualification as a surety on O’Connor’s bond. Rule 28 of the civil district', court did not require that any surety company should offer and file in the archives of the court proof of the company’s qualification to serve as surety on any bond that might have to meet with the approval of the court, before an occasion should ari'se for making such proof. As a matter of fact, the proof was offered and filed by the Globe Indemnity Company before the district attorney’s rule upon O’Connor to test the qualification of his surety was tried in the civil district court — and before O’Connor had obtained a new bond with another surety. He was not put to any inconvenience in the matter of proving the qualification of the Globe Indemnity Company as surety on his bond dated June 21, 1915, and covering a period of five years from and after that date. The Globe Indemnity Company was, when O’Connor took out the new bond, and has been at all times since the 21st of June, 1915, liable as surety on the bond of that date, whatever may have been the liability of the surety on O’Connor’s bond dated June 15, 1916. See Roehereau v. Jones, 29 La. Ann. 82. O’Connor did not, because he could not, release the Globe Indemnity Company from liability as surety on his bond. He did not, because he could not, comply with the covenant which was made the condition for releasing him from his obligation to pay'the premium annually during the term of the bond. And we can see no reason in law or equity for releasing O’Connor from his obligation in that respect. The judgment of the first city court and of the Court of Appeal from the Parish of Orleans is annulled, and it is now ordered, adjudged and decreed that the Globe Indemnity Company recover of and from Robert E. O’Connor $100, with interest thereon at 5 per cent, per annum! from judicial demand ; that is, from the 21st of December, 1916, and all costs of this suit. MONROE, C. J., takes no part.