State Ex Rel. Commissioners of Wake County v. Magnin

Battle's Revisal, ch. 27, sec. 31, title, Counties and CountyCommissioners, makes it the duty of the commissioners to induct into office all of the county officers and to take their bonds. Chapter 30, sec. 9, title, County Treasurer, makes it the duty of the commissioners to sue on such bonds when the county treasurer shall report to them a breach. Section 5 makes it the duty of the commissioners to sue the county treasurer for a breach of his bond. Chapter 80, sec. 10, title, Official Bonds, gives a right of action to any person injured. In chapter 102, sec. 41, title,Revenue, the right of action against a Sheriff is given to the county treasurer, and if he refuse, to the county commissioners.

It is to be regretted that our statutes have left such an important matter so much at sea. The bond sued on is exceptional. It is treated as if it were the bond of the county treasurer, conditioned for his duties as county treasurer. But that is not precisely so. It is entirely distinct from the county treasurer's general bond, and is not provided for under the chapter entitled "County Treasurer," which provides for his general bond and prescribes his duties. It is provided for in chapter 68, secs. 32, 34, title, Literary Fund, as follows: "The county commissioners of each county shall constitute a board of education for the county . . . the county treasurer shall be the treasurer of the county board of education . . . but before entering upon the duties of his office he shall execute a bond with sufficient surety . . . for the faithful performance of his duties as treasurer of the county board of education." And then it is made his duty to receive and disburse the school fund of the county; and in this he is sometimes styled the county treasurer, and sometimes the treasurer of the county board of education; (184) and no special provision is made for a suit upon his bond for the school fund; and so we must suppose it must fall under the provisions for suits on the general bond of the county treasurer by the county commissioners.

The bond sued on in this case is for the school fund; and we are of the opinion that ex necessitate the county commissioners must have the right to sue. To confine the right to his successor in office would be impracticable, for in many cases he would be his own successor.

The objection that if the commissioners sue they must receive the money, and they are not bonded officers and might waste it, may be obviated by having the recovery paid in and disbursed under the direction of the court.

The first ground of demurrer, that the commissioners are not proper parties, is overruled.

We have already said that this suit is upon the bond for the school fund. But there is no allegation in the complaint that any of the school fund or money ever came into the defendant's hands. It is only charged that "the said treasurer accounted with the plaintiffs concerning moneys which had come into his hands as said treasurer, and on such accounting was found to be in arrears and indebted to the said county of Wake in the sum," etc. There is, therefore, no breach assigned for receiving and not disbursing the school money, which is the only duty covered by the bond. For this defect in the complaint, the second specification for demurrer is allowed.

The other grounds for demurrer are overruled. There is error. There will be judgment here sustaining the demurrer in the particular named above, and judgment that the defendant recover his costs and go without day.

It is objected by the plaintiff that the order below overruling the demurrer was not appealable, because it was not a final judgment, nor did it affect substantial rights. C. C. P., sec. 299.

(185) We have, however, over and over again entertained appeals from such orders, and although it may admit of doubt whether The Code would not bear a different construction, yet it is a matter of practice which experience can best test, and if found to be inconvenient, it can be easily altered by legislation, or, possibly, by a rule of this Court. But it ought not to be left at sea to wreck legal navigation; and therefore we decide that the order was appealable. In this case it works well, because it puts an end to the action and saves the expense and trouble of a trial, which could have availed nothing. But in a kindred case between the same parties at this term where the demurrer is overruled, it had not the same advantage; for the case has to go down for an answer and trial. Yet even in that case the decision of this Court upon the demurrer may be, and we suppose will be, decisive of the case upon its merits.

Judgment reversed, and judgment here for defendants.

PER CURIAM. Reversed. Cited: Comrs. v. Magnin, Post, 187; Sutton v. Schonwald, 80 N.C. 23;Clifton v. Wynne, ib., 152; S. v. McDowell, 84 N.C. 802; Commissioners v.Magnin, 86 N.C. 287; Wescott v. Thees, 89 N.C. 58; Ramsay v. R. R.,91 N.C. 419; Clements v. Foster, 99 N.C. 257; Pender v. Mallett,122 N.C. 164; Shelby v. R. R., 147 N.C. 538.

(186)