This case was reargued at the April, 1940, term of this Court. Heretofore the present Chief Justice prepared a decision with the result of which I agree and am, therefore, of the opinion that it should be made the judgment of this Court, and that the orders of the Circuit Court from which this appeal was taken should be affirmed.
It may be emphasized that the bond executed by the appellants was for the faithful performance of "the duties of said office as now or hereafter required by law * * *." (Italics added.) In my opinion it is immaterial whether it was the duty of Williams to collect paving assessments at the time of the execution of the bond and, therefore, the alleged representations of the mayor and council thereabout to the surety are unimportant, this in view of the passage of the ordinance or resolution in 1932 expressly imposing such duty upon Williams after which the surety appears to have done nothing toward relieving itself from liability upon the bond. Its conduct in thereafter receiving the annual premiums, doing nothing toward terminating its liability, making no question of the 1932 ordinance or resolution and questioning its liability upon its bond only after loss has occurred does not commend itself.
The opinion of the Chief Justice, hereinabove referred to, is as follows:
Mrs. Martha E. Mason, suing in behalf of herself and all other taxpayers of the City of Spartanburg who may come in and contribute to the costs of the action, and for and in behalf of the City of Spartanburg, brought action against I. *Page 308 T. Williams as the city clerk and treasurer of the City of Spartanburg, and Fidelity Deposit Company of Maryland as surety of said I.T. Williams, as city clerk and treasurer of the said city.
The cardinal issue presented by the complaint is that it was the duty of I.T. Williams, clerk and treasurer as aforesaid, to collect the paving assessments due the city, but that in neglect of his said official duty he did not collect such paving assessments; neglected to take proper action in the matter until the lien provided by law for such paving assessments had expired. The bond which the law requires such officers to give, and which was given with the co-defendant herein as surety, provided that the condition of the bond is that "if the above-bound I.T. Williams shall well and truly perform the duties of said office * * * then the above obligation to be void and of none effect, or else to remain in full force and virtue." The said bond is in the sum of $20,000.00.
The complaint further alleges that by and because of the failure and neglect of the said I.T. Williams, as clerk and treasurer, to collect the paving assessments, the City of Spartanburg has lost the amounts of said assessments totaling $28,854.66, and that such loss entails upon the city the necessity of imposing upon the plaintiff and all other owners of property in the city additional taxes to meet such loss.
That by reason of such loss through the negligence of said I.T. Williams, he, as principal, and the Fidelity and Deposit Company, as surety, have become indebted and liable on said bond to the City of Spartanburg and the citizens thereof in the sum of $20,000.00, for which claim has been made and payment refused. That on information and belief the plaintiff alleges that the City of Spartanburg has failed and refuses to protect the interests of the people of Spartanburg.
On defendant's motion, the Court granted an order which required the plaintiff to allege more specifically the acts or ordinances which form the basis of plaintiff's suit. It seems *Page 309 that one object of procuring such order was to enable defendants to plead thereto all legal defenses available. The plaintiff by her amended complaint complied with the order of the Court.
For answer, I.T. Williams set up a general denial, and admitted Paragraphs (2) (3), (4) and (7) of the complaint; admits that he executed the bond with Fidelity Deposit Company of Maryland as his surety; alleges that said bond was executed upon an application made to the said surety by the City of Spartanburg to the effect that this defendant was in no way responsible or liable for failure to collect past-due taxes, paving assessments, license fees, etc., and that such representation was in conformity with the duties attaching to the said office of city clerk and treasurer of the City of Spartanburg. He admits that on March 21, 1932, the city council of the City of Spartanburg passed a resolution or ordinance, but denies that it is correctly set forth in the complaint and prays reference to it.
By way of affirmative defense, he alleges: That after due inquiry made the City of Spartanburg was advised on two occasions in the form of written opinions by the city attorney, who under the statutory laws of the State is made legal adviser of the City of Spartanburg and its officials in all legal matters, that paving assessments against property located in the City of Spartanburg continued as valid liens upon the property involved in and covered by such assessments for a period of ten years from the date that such assessments were ratified; that the said city and its officials were entitled to rely upon the opinions of the regularly elected and acting city attorney, and are not liable or responsible for any error therein; that the said city and all its employees, including this defendant, so this defendant is informed and believes, relied in good faith upon the aforesaid legal opinions duly rendered by the city attorney, and that such advice of counsel, given upon a strictly legal matter, received and relied on in good faith, is plead as a complete bar to any right of action herein. *Page 310
The defendant, the Fidelity Deposit Company of Maryland, set up for answer a general denial, and admits the allegations of Paragraphs 2, 3, 4, and 5 of the complaint. It admits so much of Paragraph 6 as alleges that it executed a bond substantially in the form set forth, pursuant to the application of the City of Spartanburg, specifically denies that said bond was executed pursuant to the "statutory laws of South Carolina," and in that connection it alleges that the bond so executed by it as surety on behalf of I.T. Williams as city clerk and treasurer of Spartanburg, was executed in reliance upon and pursuant to a written application and the representations therein made to it by the City of Spartanburg through the mayor of the city acting under the authority of the city council of said city, and that among the representations included in said application, and without which defendant would not have executed said bond, was the representation that the principal on said bond was not responsible for delay or failure in the collection of city taxes, paving assessments, license fees, etc., and that said representations, constituting a part of the inducement for the execution of the said bond by the defendant, and without which the defendant would not have executed it, constitutes a part of it and must be given effect in the construction of the bond.
And there follows an affirmative defense set out in the same language as is the affirmative defense set out in the answer of the defendant, I.T. Williams.
And further answering by way of affirmative defense, this defendant alleges that this defendant refused to issue any bond on behalf of its co-defendant herein if its principal, under his duties as city clerk and treasurer, was in any way responsible or liable for a failure to collect promptly and properly delinquent taxes, paving assessments, license fees, etc.; that the City of Spartanburg through its mayor, acting under the authority of the city council, in order to induce this defendant to execute the bond represented unto this defendant that its principal was not responsible for failure to collect delinquent taxes, paving assessments, license *Page 311 fees, etc.; that relying upon said representations, without which this defendant would not have executed said bond, and which represented a material inducement made by the City of Spartanburg to it, this defendant executed said bond, and that by reason of the representations relied on by this defendant, the City of Spartanburg and all persons claiming in its right and stead, such as the plaintiff herein, are estopped from asserting any liability under said bond against this defendant for the failure of its principal to collect past-due taxes, paving assessments, license fees, etc.
The plaintiff moved to require the defendant, I.T. Williams, to strike from his answer all the matter in Paragraph 4, upon the grounds that it is irrelevant, redundant, immaterial and constitutes no defense to the plaintiff's cause of action, and that any evidence relating thereto would be inadmissible. And plaintiff, at the same time, moved to require the defendant Fidelity Deposit Company to strike from its answer the allegations of Paragraph 4, which is identical to Paragraph 4 of the answer of I.T. Williams, and the motion to strike was made on the same grounds as the motion to strike Paragraph 4 of the answer of I.T. Williams. Plaintiff also moved to require the Fidelity Deposit Company to strike Paragraphs 2 and 3 of its answer on the same grounds. These paragraphs have been hereinabove set out and need not be repeated.
After the commencement of the action, the plaintiff, Martha E. Mason, died intestate. C.M. Mason and W.P. Mason were duly appointed administrators of her estate. They filed their petition praying that their names be substituted for hers and that the action be continued and revived in their names.
In due time Judge Gaston filed his order granting the motions to strike and another order granting the motion to substitute C.M. and W.P. Mason in the place of Martha E. Mason and that the action be continued in their names.
From these orders, appeals come to this Court upon numerous exceptions. With their usual ability, appellants' *Page 312 counsel have suggested and argued a number of questions. In our opinion the cardinal questions upon which the appeal turns are these:
1. Was the Circuit Judge correct in granting the motions to strike?
2. Was it the duty of the city clerk and treasurer to collect back taxes and paving assessments?
3. Was the Circuit Judge correct in granting the motion to substitute C.M. and W.P. Mason in the stead of Martha E. Mason, deceased?
The answer to the first question is found in the determination of the inquiry: Is the matter which plaintiff moved to strike from the answers irrelevant? If it is, it was right to strike it.
Nowhere have we found in terse and apt language a better definition of irrelevancy than in the opinion in the case of Gadsden v. Catawba Water Power Company, 71 S.C. 340,51 S.E., 121. Syllabus 1 is in these words: "An allegation stating the reasons why a defendant was indifferent and careless is merely evidentiary and should be stricken out as irrelevant."
In the present case the defendant Williams seeks to excuse himself for failing to collect the past-due paving assessments on the grounds that the city attorney had given it as his official opinion that the lien of the paving assessments extended for ten years from the date on which the assessments were approved, whereas the lien lasted for only five years. And the Fidelity Deposit Company seeks to excuse itself on the grounds that the mayor of the city, to induce it to execute the bond for the city clerk and treasurer, assured it that the city clerk and treasurer was not responsible or liable for uncollected paving assessments. The city clerk and treasurer had it in his power to determine or ascertain the extent of the lien of the paving assessments, with which, in all probability, he had been intimately connected. If he chose to accept the opinions of others thereabout, he must abide by his error and neglect. The Fidelity Deposit Company *Page 313 was even more negligent. That defendant is engaged in executing bonds for those engaged in fiduciary positions. Of all persons they should be the most careful to ascertain the true facts in regard to the officers for whom they become surety, and the nature of the duties the principal is to discharge. In this case this defendant accepted the statement of the mayor, and the opinion of the city attorney in regard to a matter vital to the safety of the interests of the defendant, and in regard to which it could easily have reassured itself. Its own negligence is responsible for the dilemma in which it finds itself.
We do not think that such excuse should shield it at the expense of the public which, it is alleged, will suffer great loss if it be excused.
In the case of Watford v. J.K. Windham Co., 64 S.C. 509,42 S.E., 597, 598, the action was on a note. At great length the defendant set out alleged transactions between himself and plaintiff relating to matters remotely relating to the issues made by the then action. Judge Buchanan struck out these allegations as irrelevant. Mr. Justice Jones said on appeal: "The portions of the answer stricken out were paragraphs 3, 4, 5, 6, 7, and 8 above. We think there was no error. Under section 181 of the Code of Civil Procedure, irrelevant, matter in a pleading may be stricken out on motion. The matter stricken out in this case is clearly irrelevant, having no substantial relation to any matter in controversy, and, if proven as alleged, it would not defeat plaintiff's right to recover upon the note, which defendants admit they executed to plaintiff."
In the case now before us, the issue tendered by the complaint is that Williams, the city clerk and treasurer, by his neglect and failure to collect the paving assessments until the lien which secured their payment had expired, this caused loss to the plaintiff and those in like state with her. How can it be said that this defendant, who admittedly did not collect the paving assessments in proper time, may be excused of his default because he was wrongfully advised by city officers? *Page 314 It was his duty to ascertain the true status of the matter. In reply to the same issue tendered by the plaintiff, the defendant Fidelity Deposit Company seeks to escape liability on the clerk and treasurer's official bond by saying that it would not have signed the bond if the city, through its mayor, had not misled the company by saying the clerk and treasurer had nothing to do with collecting back taxes and paving assessments. That can have no relevancy to the only issue tendered by the complaint. Concede, if you please, that these wrong statements were made to the defendant, it was not bound to accept them. It had the means of ascertaining the truth about them, but rather than ascertaining the truth, it preferred to accept and act on the statements.
In the case of Mikell v. McCreery-Pressley Company, 105 S.C. 25,89 S.E., 467, it is laid down that: "Motions to strike out allegations as irrelevant and redundant are addressed to the discretion of the trial Judge. * * * All allegations not appropriate to a cause of action relied on are superfluous and should, on motion, be stricken."
The appellants do not complain or contend that the Circuit Judge abused his discretion. Indeed, it could not well have been so contended.
The appellants take the position that there is no allegation or showing that the city clerk and treasurer is required to collect paving assessments and, hence, his failure to do so is not such neglect of duty, even if there was loss of the amount of the paving assessments, as would make him responsible, and his bond is not liable.
Spartanburg is under the commission form of government. In regard to such cities, Section 7604, Code 1932, provides: "The council shall have, possess and exercise all executive, legislative and judicial powers and duties conferred upon such city, or theretofore belonging to it, with the power to establish such subordinate officers as they may see fit, and assign to them appropriate duties, subject to the council. * * *" *Page 315
On the 21st day of March, 1932, the city council of Spartanburg adopted the following resolution, see page 22 of the Transcript of Record:
"EXHIBIT `I' "Minute Book Page 531 "Resolution Relating to the Collection of Abutting Property Assessment Tax:
"Whereas, It appears that there are a number of delinquents on the Abutting Property Tax Books whose final installments are past due and who have been duly notified by published notice in the local papers; and Whereas, it is absolutely necessary to collect this tax with which to meet obligations incurred in making such improvements; therefore, be it
"Resolved, That the City Treasurer be, and is hereby instructed to notify each delinquent, in writing, the amount due and unpaid, and that if such account, as set forth in said notice, is not paid within fifteen days from date of this notice he shall proceed at once to collect same, as provided by law."
Unquestionably, the council had power to enact such ordinance or resolution. Unquestionably, the resolution in plain language directs the city treasurer to collect these past-due paving assessment taxes.
It seems idle to question that it was the duty of the city treasurer to collect these taxes and that it was a breach of his duty not to do so, and that his official bond was liable thereon.
Did the Circuit Judge err in granting his order that the administrators of the estate of Martha E. Mason, the plaintiff, who died after action begun be substituted in her stead?
The gravamen of appellants' contention is that the parties substituted were not required to file a supplemental complaint. Appellants do not point out how they have been hurt thereby, nor do they set out the particulars which the substituted parties should have been required to set out in the *Page 316 supplemental complaint. The defendants were already apprized of the fact that C.M. Mason and W.P. Mason were administrators of the estate of Martha E. Mason, who had died after the bringing of the action in which she was plaintiff. That the new parties could have added nothing to the complaint is above suggestion. To have required the service of a supplemental complaint would have been a needless gesture.
The decree of the Circuit Judge contains this pertinent and timely comment:
"Plaintiff in this case was merely a nominal plaintiff, the beneficial interest being in the City of Spartanburg and in the public. The money collected on defendant's bond would enure to the benefit of the City of Spartanburg and the public in general. They are, therefore, the beneficial plaintiffs and the real parties in interest.
* * * "The death of one taxpayer would not abate the action as to all of the other taxpayers and as to the City of Spartanburg the beneficial plaintiff. It has been generally held that the death of any person suing in a representative capacity does not abate the action, but that the administrators may continue the action in their name.
"1 Cyc., 59: `It has been held that a taxpayer's action survives plaintiff's death.'
"Gorden v. Strong, 158 N.Y., 407, 53 N.E., 33. `In the case of the death of the taxpayer, the action may be continued in the name of the executor or administrator on motion of such executor or administrator.
"1 C.J.S. [Abatement and Revival, §] 118: `Death of a nominal or merely formal plaintiff is no ground for abatement of an action or suit.' The suit proceeds in the name of the real party in interest."
We hold that the Circuit decree appealed from correctly disposes of the salient issues involved in the appeal; and this opinion disposes of the issues really made by the exceptions.
MR. CHIEF JUSTICE BONHAM concurs. *Page 317