Marlar v. State

1. Tax Colleotob’s Bohd. Action on for default. Negligence of other officials no defense. In an action upon the bond of a sheriff, as tax collector, for a failure to pay over to the treasurer taxes collected for the county, it is no defense as to the sureties on the bond for them to show that it was the duty of the county treasurer and clerk of the board of supervisors of the county to report the first default of the tax collector, and the duty of the governor or any court of competent jurisdiction upon such report to remove him, and that none of these duties had been performed. 2. Same. Action for breach thereof. Reference to referee. Section 1724, Code 1880. An action upon a tax Collector’s bond to recover a balance declared to be due the county, and shown by a statement of his accounts with the county for two years, “involves matters of account” within the meaning of $ 1724 of the Code of 1880, which authorizes a reference in such case to a referee or referees, “ to state and report an account between the parties.” 3. Tax Collector's Bond. Action on. Dissent from, reference. Right of trial by jury. But if either party dissents from such reference in the manner specified in the statute, and “in the same term in which the [referee’s] report is filed” demands a trial by jury and files his exceptions to such report, it is error for the court to confirm the report and refuse the application for a jury trial, even where it was not made till after the commencement of argument on a • motion to confirm the referee’s report.

Appeal from the Circuit Court of Tishomingo County. Hon. J. W. Buchanan, Judge. This action was brought in January, 1883, in the name of the State, for the use of the Board of Supervisors of Tishomingo County upon the bond of C. C. Castlebery, as sheriff and tax collector of Tishomingo County during the years 1878 and 1879, to recover of him and his sureties eight hundred and fifty dollars declared to be due from him to that county for taxes collected by him during those years and not paid into the county treasury. A bill of particulars or statement of Castlebery’s account with the county, showing the debits and credits for the years mentioned, the separate balance due by him for each year, and the aggregate balance for the two years, was filed with the declaration. On the 21st of September, 1883, G. W. Marlar and others, sureties on Castlebery’s bond, filed a plea denying the default charged against their principal in the plaintiff’s declaration. In January, 1884, a trial was had and a verdict rendered in favor of the defendants, but upon motion of the plaintiff it was set aside and a new trial granted. At the July term, 1884, of the court, upon the motion of the plaintiff the case was referred to J. W. Jourdan, as referee, to “ state and report to the next term of the court an account between the parties ” in pursuance of certain directions expressed in the order of reference. The defendants excepted to the action of the court in referring the case. At the January term, 1885, of the court the referee made his reportj showing an indebtedness by Castlebery; and at the same term the defendants filed exceptions to the report and demanded a trial of the case by a jury. The defendants, Marlar and his co-sureties, at that term of the court asked for leave to file several pleas, to the effect stated in the opinion of this court, but it was denied by the court below. The court, upon the motion of the plaintiff, confirmed the referee’s report and rendered judgment in accordance therewith against the defendants. The defendants’ demand for a trial by jury was made after the motion to confirm the referee’s report and while it was being argued by counsel. From the judgment rendered as above stated the defendants appealed to this court. 1. We submit that the action of the court below in referring this cause to a referee to make and state an account was clearly error. Section 1724, Code of 1880, is not applicable to this kind of a case, and we call upon the court for a construction of the same. Sections 549, 550, and 551, Code of 1880, regulate exactly how these suits shall be commenced and how they shall proceed. Section 550 requires that they be tried at the first term, and to refer them to a referee under § 1724 unavoidably and naturally works a continuance. The lawmakers evidently never intended for actions on official bonds to be considered as actions on “ matters of account.” 2. The court below should have allowed plaintiffs in error to file their amended pleas, because a surety’s liability should be tested in the light of all the facts and should not be fixed upon him unless he is clearly liable in law. The liability of a surety must come within the strict letter of the law. 3. Unquestionably, it was a fatal error for the court to refuse appellants’ demand of a trial' by jury during the same term of court to which the report was returned and filed. The very section under which the reference was made enacts that either party may in the same term in which the report is filed demand a trial by jury and file exceptions, etc. Section 1724, Code 1880. We urge that under § 1724 of Code of 1880 the party desiring jury trial upon the report of referee is not required to file his exception to report and his demand for jury “ on or before the second day of the term ” to which the report is made, but that this demand may be made at any time before the confirmation of the report and during the same term. The code in section above uses this language, “ And in the same term in which the report is filed.” This section is a special statute governing this particular kind of cases, and the pleader is not required to observe the general rule' of pleading and practice as- laid down in the code. The court had complete control of this matter, and it would have been nothing but justice and reasonable to have allowed the jury trial unless the exceptions filed or asked to be filed contained no defense to the report, or rather showed no cause why the report should not be confirmed, a position not entertained and not relied on by counsel for appellee. Their legal sufficiency could not be tested on motion if they were possessed of the slightest degree of merit, as was held in Marshall etal. v. Hamilton, 41 Miss. 235-;• see' also Beard v. Green, 51 Miss. 856, and cases cited. It is submitted that the assignment of error referring to the action of the court in denying defendant’s application to file additional pleas is without merit — first, the proposed pleas presented no defense to the action, and second, they were preferred after the cause was tried b>y jury at one term and by a referee at another. Nor is there merit in the objection that this action was not embraced in § 1724. It would appear that “ matters of account ” were certainly “ in controversy.” The application to file the exceptions to the referee’s report and the demand for a jury after the day set for the hearing, and after the motion to confirm was under argument and consideration, we submit, was addressed to the discretion of the court.