United States Fidelity & Guaranty Co. v. Young , 127 Miss. 725 ( 1921 )

AndeRSON, J.,

delivered the opinion of the court.

This is a bill by the appellee, J. P. Young, former sheriff of Lauderdale county, against W. C. Fleming, former circuit clerk of said county, and the United States Fidelity & Guaranty Company, the appellant, the surety on the official bond of said clerk, to recover one thousand, one hundred forty-two dollars and seventy-five cents fees alleged by the appellee to have been collected by said clerk by virtue of his office, during his term of office, belonging to the ap-pellee, which the said clerk had failed and refused to pay over to appellee, thereby breaching the condition of his official bond. There was an original and two amended bills filed. Appellant’s demurrer to the last-amended bill was overruled, from which decree appellant was allowed an appeal to this court to settle the principles of the cause.

The gravamen of the bill is that for the term of four year, 1916 to 1919, inclusive, the appellee was sheriff of Lauderdale county and W. C. Fleming was circuit clerk; that during said period (talcing the averments of the bill most strongly against the pleader, as should be done), the circuit clerk collected from various litigants against whom court costs had been adjudged by the circuit court of said county various amounts of such costs belonging to appellee, which said circuit clerk had failed and refused to pay over to appellee, on demand; that said costs so collected were costs voluntarily paid by the parties litigant against whom it had been adjudged; that under the law it was the duty of such circuit clerk to receive payment of costs under such conditions; that he received the same by virtue of his office; and, in addition, that by long custom and practice he had been in the habit of so receiving and receipting for court' costs, and therefore they bad been received by color of his office. The condition of the official bond of the said clerk is in the language of the statute, which is that “he shall faithfully perform the duties of his said office during his continuance therein.”

It is contended on behalf of appellant that the case of Matthews v. Montgomery, 25 Miss. 150, is decisive of the question here involved in its favor, and that under that authority appellant is entitled to a reversal of the decree of the court below and a dismissal of appellee’s bill. Matthews v. Montgomery, supra, like the present case, was a suit by Flournoy, former sheriff of Madison county, against Montgomery and the sureties on his official bond as circuit clerk of said county. The breach assigned was that Montgomery, as clerk, collected fees belonging to said Flournoy, as sheriff, and had failed to pay over the same to him on demand. The court said:

“The only question made is, whether the action can be sustained on the bond. The bond is conditioned that the clerk shall faithfully perform those duties required of him by law. It is no part of his duties to collect or receive the fees due other officers of the court. He is not, in.such case, the officer of the law to recéive the fees or the agent of the officer for that purpose, but only the agent of the party paying.”

It is argued on behalf of appellee that the Matthews Oáse is not decisive of the question here involved, because of the difference in the duties of the circuit clerk as prescribed by law at that time and at the present time. We have examined the statutes in force when that decision was made, as they appear in Hutchinson’s Code, governing the duties of the circuit clerks, for the purpose of comparison with the statutes now in force with reference to their duties, and we are unable to find any substantial difference. The condition of the clerk’s bond then was in this language:

“Conditioned for the faithful performance of the duties of his office, and that he seasonably record the judgments, decrees, and orders of said court, and deliver over to his successor in office, all records, minutes, books, papers, presses, and whatever belongs to said office.” Hutchinson’s Code, chapter 27, section 10, p. 432.

This, in effect, is the same condition as that laid down by law at present. It was distinctly held in the Matthews Case that a circuit clerk receiving payment of court costs due the sheriff, under the circumstances of the present case, acted alone as the agent of the party paying.

It is conceded on behalf of appellee that there was no statute during Fleming’s term of office which expressly made it the-duty of circuit clerks to receive and receipt for, and disburse to those entitled thereto, costs voluntarily paid to them by litigants in their courts against whom the same had been adjudged. But it is argued that the allegation in the bill that by long custom and practice the circuit clerks had been performing such services is sufficient to have made it a part of.their official duties, and to sustain this position counsel for appellee cites and relies on 11 C. J., section 69, p. 886, which states that clerks of courts are not only required to perform the duties expressly imposed on them by law, but also such as by long-established practice they are required by the court to perform. Were this contention sound, there is no allegation in the bill in this case that the long-established custom averred in the bill of the circuit clerks collecting costs voluntarily paid to them was the result of a requirement by the courts of Which they were clerks. In the same paragraph of Corpus Juris referred to by counsel it is further stated that a statute conferring powers on a clerk is to be strictly construed and will not be extended beyond its terms.

We therefore conclude that there is no liability of the surety on the bond in question.

Reversed and judgment here for appellant.

Reversed.