The questions involved, as contended by defendant Surety Company, will be considered seriatim.
(1) Is this a summary proceeding such as is provided for by C. S., 356, or is it a civil action and should it have been commenced by summons, as directed by C. S., 475, and subject to the statutes otherwise controlling civil actions? We think this is a summary proceeding as is provided for by 0. S., 356.
C. S., 475, provides for civil actions which shall be commenced by summons. We see no reason, from the facts in this case, why plaintiffs could not pursue the summary remedy under 0. S., 356 or bring a civil action under 0. S., 475. It was optional with plaintiffs.
The statute, C. S., 356, is as follows: “When a sheriff, coroner, constable, clerk, county or town treasurer, or other officer, collects or receives any money by virtue or under color of his office, and on demand fails to pay the same to the person entitled to require the payment thereof, the person thereby aggrieved may move for judgment in the Superior Court against such officer and his sureties for any sum demanded; and the court shall try the same and render judgment at the term when the motion shall be made, but ten days notice in writing of the motion must have been previously given.”
The summary remedy against certain public officials has been provided for by statute practically ever since this has been a commonwealth, and held to be constitutional. Anonymous case, 2 N. C., 29; Oats v. Darden, 5 N. C., 500; Broughton v. Haywood, 61 N. C., 380.
In Worth v. Cox, 89 N. C., at p. 49, it is said: “The office is accepted and the bond given under the known conditions of the law that permits this direct and expeditious remedy in case of default, and these may be said to enter as elements into'the contract itself. But it is enough to say that if any law can be deemed settled and not longer to admit of controversy, the practice under this, or a similar enactment for near a century past, has established its validity.”
In Lackey v. Pearson, 101 N. C., at p. 654, we find: “The reasoning is not satisfactory to us, because it does not follow, when a choice of two modes of redress is given, that both may be used at the same time, but rather that an election of the one precludes a resort to the other. A familiar illustration is furnished in the statute which gives the summary remedy by a motion, after notice, against a sheriff, coroner, constable, clerk, county or town treasurer, or other officer, who receives money by virtue or color of office, and on demand fails to pay the same to the person entitled, and not only against him, but the sureties to- his official bond — The Code, sec. 1889 (O. S., 356) — and it has never been understood that this cumulative and optional remedy obstructed the
The defendant Surety Company in its answer set up certain reasons, and renews them by proper exceptions and assignments of error, why this proceeding should be dismissed, but if tenable we think they have been waived by the answer of defendant Surety Company setting up the plea of the statute of limitations and other defenses and demanding a jury trial. The record shows “The defendant, .¿Etna Casualty and Surety Company, in apt time asked the court to instruct the jury as follows,” etc. The defendant Surety Company requested twenty-two prayers for instructions. The case was argued by defendants’ counsel to the jury.
In Motor Co. v. Reaves, 184 N. C., at p. 263, we find: “We must hold upon principle and authority, that the defendants have made a full appearance in the case, and will be bound in all respects by the orders and decrees of the court. This result follows because they have not confined themselves to a special appearance for the purpose of raising the question of jurisdiction of the person, but have gone beyond that and asked for a hearing upon matters not relating solely thereto, but including other matters, as to the plaintiffs’ legal rights and their own in regard to the policy of insurance, and still further, they have challenged the jurisdiction of the court as to the subject-matter of the action, and thereby waived any defect as to the jurisdiction of the person, the appearance being considered by all the authorities as a general one.” Scott v. Life Asso., 131 N. C., at p. 518-19; School v. Peirce, 163 N. C., at p. 429; Hatch v. R. R., 183 N. C., at p. 628; In re Rockford Produce Co., 275 Fed., 813; Livingston v. Becker, 40 Fed. (2d), 675; Babbitt v. Dutcher, 216 U. S., 102.
The defendant Gant is out of the picture. His attorney, speaking for him, said: “The defendant Gant will not resist a judgment — such judgment as may be rendered under your Honor’s instructions.” The jury rendered a verdict against him for $90,519.44. Defendant Surety Company contends no demand was made before issuing the notice and for this reason the action should have been dismissed. The clerk does not make this contention, he did not resist the judgment and has not appealed from it.
In Furman v. Timberlake, 93 N. C., at p. 67, we find: “The case of S. v. McIntosh (31 N. C., 307), was the first case in this State where the point was decided, and it was there expressly held that no demand was necessary, before bringing an action against the sheriff for money collected by him because as Nash said, 'The money here collected is public money, and for it no demand was necessary.’ ”
Tbe evidence was so overwhelming against tbe clerk tbat be waived everything and submitted to tbe judgment. Defendant Surety Company, surety for tbe clerk, now alone contests plaintiffs’ right to recover this money admittedly misappropriated by tbe clerk.
Tbe Surety Company contends tbat C. S., 356, contemplates only a notice and motion. “O. S., 353, 354 and 355, contains tbe provisions authorizing tbe plaintiff to bring a civil action. These, of course, require tbe issuance of a summons, tbe filing of a complaint, and tbe right to tbe defendants to file their pleadings and to have tbe issues made up and to be beard and determined by a jury. Under tbe authorities hereinbefore cited and tbe very wording of tbe statute itself, tbe record shows tbat tbe plaintiffs should have brought a civil action and tbat there was error in bolding tbat plaintiff could maintain a summary proceeding under 0. S., 356.”
Tbe theory upon which this case was tried, tbe Surety Company’s general appearance and pleading, demand for jury trial, prayers for instructions, and argument by defendant’s counsel to jury, waives any rights, if it bad any, under tbe above sections of tbe Consolidated Statutes it now attempts to invoke.
(2) Were tbe moneys and effects sued for received by tbe defendant, M. W. Gant, either by virtue or by color of bis office for and on behalf of tbe plaintiffs herein, and are bis alleged defalcations within tbe terms of tbe bonds executed by appellant? ¥e think so.
Tbe statute, C. S., 356, under which this summary proceeding was instituted, expressly provides tbat tbe clerk shall be responsible when be “collects or receives any money by virtue or under color of bis office.”
Tbe several bonds executed by tbe defendant and upon which judgment was rendered, each contains tbe following provision: “Tbe said M. W. Gant shall account for and pay over, according to law, all moneys and effects which have come or may come into bis bands by virtue or color of bis office.”
Tbe defendant Gant, as clerk, made up and certified tbe lists of pensioners to tbe State Auditor. This is not denied. He did it continuously for seventeen years. Warrants were sent by tbe State Auditor in accordance with this list, and semiannually each year, tbe defendant Gant, as clerk of tbe court, receipted for them and assumed tbe responsibility of paying them out to tbe parties entitled thereto, or of returning them as tbe State Auditor directed, within sixty days, if not called for. During
C. S., 5168 (n) expressly provides tbat before any petitioner can receive a pension, be must file with tbe clerk of the Superior Court where be resides an application. O. S., 5168(o), provides it shall be tbe duty of tbe clerk to forward tbis application to tbe State Auditor; and C. S., 5168 (q) definitely fixes tbe clerk of tbe court with tbe responsibility as follows:
“Pensions are payable in advance, and tbe State Auditor shall transmit to tbe clerks of tbe Superior Courts of tbe various counties warrants for pensioners for one-half of tbe yearly pensions between tbe first and fifteenth of December and for one-half of the yearly pensions between the 1st and 15th of June of eacb year. ' It shall be tbe duty of tbe clerk of tbe Superior Court to acknowledge to tbe Auditor tbe receipt of sucb warrants by tbe next mail after their receipt, to deliver or mail forthwith to eacb pensioner in bis county bis warrant, and to post in tbe courthouse a list of tbe pensioners to whom be has mailed or delivered warrants.”
0. S., 5168(r) directs tbat tbe clerk of tbe court shall attest by bis official signature tbe endorsement of tbe payee. C. S., 5168 (s) designates further what tbe clerk shall do with pension warrants after tbe death of tbe pensioner.
Tbe State Auditor testified tbat accompanying tbis list was a letter addressed to tbe clerk of tbe Superior Court in which it was said: “These warrants will not be paid by tbe State Treasurer unless presented within sixty days from their date. . . . Please return to us all warrants on band undelivered and also return printed lists sent, indicating on these lists sucb changes as have occurred among tbe pensioners by death, removal or any other causes.” Tbe State Auditor further testified, “Tbe form which I have in my band has been used for thirty years.”
C. S., 927, is as follows: “At tbe first meeting of tbe board of commissioners of eacb county after the election or appointment of any clerk of a Superior Court it is tbe duty of tbe clerk to deliver to such commissioners a bond with sufficient sureties, to be approved by tbem, in a penalty of not less tban ten thousand dollars,1'and not more tban
In Thomas v. Connelly, 104 N. C., at p. 346-7, construing this section, we find: “Such clerk is an important and responsible public officer, his duties are varied and serious, affecting the public and individuals. In a variety of ways moneys, rights, credits, securities and other .things of value belonging to others go into his hands, and the law charges him with the same for such persons or for their benefit. The statute is careful to make the bond extend to and embrace within its scope and purpose, not only such' ‘moneys and effects’ as may come into his hands by 'virtuef of his office, but as well, and as certainly, to such as may so come by ‘coloP thereof, and, likewise, to such additional 'duties of his office as may be prescribed by law after the execution of the bond. There seems to be a studied purpose to make the bond embrace and to create liability of the sureties thereto on account of all ‘moneys and effects’ that come into the hands of the clerk as such, whether they so come strictly according to law or not.”
“Color of his office” has been construed to embrace all cases where the officer receives the money in his official capacity, when he is not authorized or required to receive the same. Thomas v. Connelly, supra; Sharpe v. Connelly, 105 N. C., 87; Presson v. Boone, 108 N. C., 78; Smith v. Patton, 131 N. C., 396; Hannah v. Hyatt, 170 N. C., at p. 638; State ex rel. Gilmore v. Walker, 195 N. C., 460; 59 A. L. R., 53 Anno. “Rule in N. C.,” p. 73.
The statute is broad and comprehensive “if he shall account for and pay over, according to law, all moneys and effects which have come into his hands by virtue or color of his office ” etc. The surety bond of defendant surety company is in the language of the statute. The pension warrants came into the clerk’s hands by virtue or under color of his office. They were things of value belonging to others. As clerk, by express statutory authority, he had these warrants and was a trustee to perform a solemn duty. The possession enabled him to betray this trust by forging the warrants and misappropriate and embezzle the funds. We think the Surety Company is liable under the -facts and circumstances of this case, and the statute applicable. The plaintiffs
(3) Did plaintiff undertake to join as one cause of action five separate and distinct causes of action, and undertake to recover as if tbe five bonds alleged constitute one entire transaction, and should said action bave been dismissed? We think not.
It is well settled that where a defaulting- clerk succeeds himself, and has given tbe required bond for each term, with tbe same surety, and continues bis defalcation, tbe surety is liable only to tbe amount of tbe bond for each term. S. v. Martin,, 188 N. C., 119.
In Smith v. Patton, 131 N. C., at p. 397, we find: “It is settled in tbis State that tbe bond of a public officer is liable for money that comes into bis bands as an insurer, and not merely for tbe exercise of good faith . . . (citing authorities). Bonds of administrators, executors, guardians, etc., only guarantee good faith,” citing authorities. Marshall v. Kemp, 190 N. C., at p. 493; Gilmore v. Walker, supra, at p. 4-64; Indemnity Co. v. Corp. Com., 197 N. C., 562.
Tbe court below clearly charged that tbe Surety Company is liable only to tbe amount of tbe bond for each term, and further charged: “It is admitted, in tbis connection, gentlemen of tbe jury, that there ’were five bonds executed, and that those bonds bave a limitation,- and in no event can tbe plaintiffs recover more than tbe limitation fixed in tbe bond. In some of these instances tbe principal and damage demanded, or contended for by tbe plaintiffs, exceed tbe amound of tbe bond. Although tbe plaintiffs may establish that much indebtedness by Gant, they cannot recover of tbe bondsmen more than tbe face of tbe bond.” Supply Co. v. Plumbing Co., 195 N. C., 629.
(4) Are tbe different amounts which were received by tbe defendant Gant six years prior to tbe commencement of tbis action barred by tbe statute of limitations, as a matter of law, upon these allegations and evidence, and should tbe trial judge bave instructed tbe jury to that effect? We think not.
Tbe facts as disclosed in tbe record -establish one of tbe most flagrant cases of official misconduct and successful fraudulent concealment of tbe facts that has occurred in tbe annals of our Court. Tbe defendant Gant, first appointed clerk by a judge of tbe Superior Court in 1913, on account of bis high standing and reputed character, was continually renominated and reelected every four years, and was still in office in
The periods prescribed for the commencement of actions in matters of this kind: O. S., 439. “"Within six years — (1) Upon the official bond of a public officer.”
O. S., 441: “Within three years an action — (1) Upon a contract obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections. (9) For relief on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.”
Mr. McIntosh in N. C. Practice and Procedure, speaking to the subject, at p. 167-8, sec. 183, says: “An action for relief on the ground of fraud or mistake must be brought within three years after the cause of action accrues; but the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. . . . The cause of action is deemed to have accrued from the discovery by the injured party of the facts constituting fraud or mistake, and not from the date of the fraud or mistake. Following the rule formerly applied in equity, knowledge is a fact to be determined by the circumstances of each case, and the statute runs from the time the injured party knows of the fraud or mistake, or could by reasonable diligence have discovered it.” R. R. v. Hegwood, 198 N. C., at p. 317.
It is contended by defendant Surety Company that O. S., 441(9) was not pleaded. The statute was not referred to in the pleading, but the facts set forth and the court in its charge fully explained the statute to the jury and no exception was taken by the Surety Company. The
From the issues submitted, the charge of the court in reference to this matter, we think defendant Surety Company was not prejudiced.
In 1Y R. O. L., sec. 223, at p. 866, speaking to the subject: “A surety’s liability is measured by that of his principal and where, owing to the concealed fraud of the latter, the statute has not commenced to run, the surety will not be permitted to invoke the protection of the statute on the ground that he was innocent of the fraud. Therefore, where, because of fraud of a principal in the concealing and misappropriation of money, the statute does not run against him, it does not run against the sureties on his bond. The reason in such eases seems to be that the sureties guarantee the good conduct and faithfulness of the principal in the discharge of the duties of his office, and that in equity and good conscience they should not be exempt from liability for his misconduct and peculations, when by fraudulent concealment he has prevented discovery until the time limited by the statute to bring action has expired. Any other construction would make the very frauds against which the sureties covenanted the means of relief from liability. The bond in such case, instead of securing the faithfulness of the officer, would tend to promote on his part skillfully and fraudulently concealed pecula
(5) Should tbe trial judge, before whom tbe motion herein was made, either have dismissed this action or made an order consolidating it with the action then pending in the same court entitled, “State of North Carolina, on relation of A. "Wayland Cooke, clerk of the Superior Court of Guilford County, suing in behalf of itself and all persons having claims against Mason W. Gant, on account of moneys, funds and securities received by him during his tenure of the office of clerk of the Superior Court of Guilford County, by virtue or under color of his office as such deck, v. Mason W. Gant and his wife, Minnie D. Gant, and .¿Etna Casualty and Surety Company?”
(6) Can plaintiffs maintain this alleged summary proceeding in the same court and at the same time the creditors’ bill aforesaid was pending, thereby appropriating to the payment of its indebtedness the greater part of the penalty of the bonds executed by appellant, the effect of which is to have itself adjudicated a preferred creditor and to deprive all other creditors in the same class from benefiting pro tanto in the bonds given as much for their protection as for that of plaintiffs?
The contention of the Surety Company is that an action subsequently instituted by A. Wayland Cooke, as clerk of the Superior Court, against Gant, for moneys received by him to which the present clerk was entitled should have been consolidated with this summary proceeding. From the record, it does not appear that Cooke made any motion asking that the two actions be consolidated, although he was present in court during the progress of this trial. Neither did the defendant Gant make any such motion, nor the defendant Surety Company. It was a ground of defendant Surety Company on its motion to dismiss, but it made no motion to consolidate, nor did it set up in its answer another action pending between the same parties. If the Surety Company ever had any rights on this aspect, we think the matter has been waived.
C. S., 511: “The defendant may demur to the complaint when it appears upon the face thereof, either that: (3) There is another action pending between the same parties for the same cause.”
C. S., 517: “When any of the matters -enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer.” Where any action is pending for the same cause and between the same parties, which fact does not appear on the face of the complaint, the objection may be taken by answer. Cook v. Cook, 159 N. C., 47; Allen v. Salley, 179 N. C., 147. It is a ground of demurrer, if it appears on the face of the complaint. C. S., 511(3),
O. S., 518: “If objection is not taken either by demurrer or answer the defendant waives the same, except the objection to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action.”
The Governor of the State, the Attorney-General and the Auditor, who compose the Pension Board, were diligent and vigilant, as it was their duty to be in the matter, and entitled to commendation.
A case involving very similar facts to this was approved by the Supreme Court of the United States in Secretary et al. v. Chaloner's Executors, 1st Law Ed., 696. The Chief Justice, speaking for the Court in this case, said: “It is an established principle, that the person who first sues and obtains judgment on an official bond is entitled to take the whole of the penalty, if his demand amounts to so much, in exclusion of every other claimant.” And further: “It is a plain principle in equity that whenever a man who had originally a legal remedy impairs it by his own neglect or omission, he shall be postponed to another more vigilant claimant; and that the Legislature entertained the same equitable sentiment may be collected from the relief which they afforded to the sureties of an auctioneer under similar circumstances.” In this case a public auctioneer was indebted to 'various people, including the State, and the Attorney-General instituted a peremptory action in the name of the State and recovered judgment while other creditors waited. This case is quoted with approval and the principle elaborated upon in 260 Pac., 152.
(7) Did the trial judge, in ruling the defendants into trial immediately after issues joined, deny appellant a legal right given it by C. S., 557, amended by chapter 54, Public Laws of 1923, and so declared in Cahoon v. Everton, 187 N. C., 369? Ve think not. This is a summary remedy under C. S., 356. Notice and complaint were filed on defendant, as required by the statute. The statute plainly says, “And the court shall try the same and render judgment at the term when the motion shall be made, but ten days notice in writing of the motion must have been previously given.”
(8) Was there an abuse of discretion on the part of the trial judge in ruling the defendants into trial at the time and under the facts and circumstances then existing? We think not.
The principle is set forth in S. v. Sauls, 190 N. C., at p. 814: “The modern application of the rule has thus been summarized: When the discretion of the trial judge is exercised with a reasonable degree of judicial acumen and fairness, it is one which the higher courts are loath
(9) Did his Honor violate 0. S., 564, and was there error in the evidence admitted and the peremptory instructions given to the jury as to the different amounts recovered under the different surety bonds executed by appellant? We think not.
0. S., 564, is as follows: “No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the -evidence given in the case and declare and explain the law arising thereon.”
The matter complained of was a matter of mathematical calculation. There could be no dispute about the amounts. In the court below stating the undisputed amounts, we can see no harm done or prejudicial or reversible error.
In Williams v. Lumber Co., 118 N. C., at p. 935, is the following: “The next exception was that the judge made a calculation ‘as per alleged contract price and handed it to the jury,’ telling them to make their own calculation, that they were not bound by his, that they must find the amount from the evidence, etc., as we have already stated. This seems harmless, and we understand it is frequently done by the judge without prejudice to any one.”
(10) Is appellant liable for twelve per cent interest from the date of the different defalcations on the part of M. W. Gant, or from the time plaintiff demanded payment from the defendant, or from the said M. W. Gant, and refusal to pay on the part of said defendants, or either of them?
The appellees waived the recovery of this 12 per cent from the actual date of each defalcation, and his Honor stated to the jury that “the court is authorized to state that the State in this instance, however, does not demand the 12 per cent from the date of the misapplication, but does demand it from the date of the expiration of each term of
O. S., 357, immediately following O. S., 356, authorizing this summary remedy on official bonds, declares: “When money received as aforesaid is unlawfully detained by any of said officers, and the same is sued for in any mode whatever, • the plaintiff is entitled to recover, besides the sum detained, damages at the rate of 12 per centum per annum from the time of detention until payment.”
The present Chief Justice, in S. v. Martin, 188 N. C., at p. 122, in a well considered opinion, conclusively settles this question against the contentions of appellant. It is there said: “As against the principal, E. E. Martin, the plaintiffs or relators are entitled to recover, in addition to the several sums found to be detained by him, damages at the rate of 12 per cent per annum from the time of detention until paid. (O. S., 357). . . . If the judgments against the principal for defalcations or misappropriations during any one term, plus damages at the rate of 12 per cent per annum, do not exceed the penalty of the bond given for that term, the relators would be entitled to- collect out of the surety the full amount of their judgments against the principal. But if the bond given for any one term be not sufficient to pay such judgments in full, the pro rata interest of each relator would be determined on the basis of the principal amount recovered plus damages at the rate of 12 per cent per annum from the time of detention by the officer up to date of settlement.”
(11) Can the plaintiff recover of the defendant the sum of twenty-five thousand dollars ($25,000) upon the bond executed by it covering the term of M. W. Gant, which ended 9 October, 1930? We think so.
O. S., 927, supra, is directory and prescribes the penalty of the clerk’s bond of not less than $10,000 and not more than $15,000. The bond given was $25,000. The Surety Company received the premium on the $25,000 bond and is estopped to deny its validity. S. v. Taylor, 72 N. W., 409; U. S. v. Hodson, 10 Wall., 395; 21 R. C. L., sec. 200, p. 1160. C. S., 324 and 327 do not militate against the position here takén. Commissioners v. Magnin, 86 N. C., 286.
“No officer of the government has a right by color of his office to require from any subordinate officer as the condition of his holding his office that he should execute a bond with a condition different from that prescribed by law. That would be not to execute it, but to supersede the requisites of the law.” U. S. v. Tingey, 8 L. Ed., 66.
We see no error in tbe issues submitted by tbe court below. Erskine v. Motor Co., 187 N. C., 826; Greens v. Bechtel, 193 N. C., 94.
Tbe arguments and briefs by tbe able and learned counsel on both sides in this case were elaborate, well prepared and helpful. Tbe case involving so important a matter was thoroughly presented by counsel on botb sides. In going over tbe long record, we find that tbe court below tried tbe case with unusual patience, care and ability. Tbe Surety Company is an insurer in a matter of this kind. It received tbe premiums on these bonds for long years to protect tbe plaintiffs. Tbe Surety Company was paid for tbe liability it assumed, and now must make good tbe breach made by its principal, who has admitted bis liability in tbe sum of $90,519.44. Tbe appeal to this Court is by tbe Surety Company alone. We see nothing in this record which tbe Surety Company can complain of. It has bad its day in court. It demanded a jury trial, they beard tbe defendant's arguments, a fair and impartial charge was given by tbe court below to tbe jury, they have found all tbe issues against tbe Surety Company and in favor of plaintiffs, and rendered a verdict against tbe Surety Company for $66,184.92.
From tbe record we can see no- error in law. Tbe judgment of tbe court below is
Affirmed.