Aetna Casualty & Surety Co. v. Board of Supervisors

168 S.E. 617, 160 Va. 11, 1933 Va. LEXIS 188
CourtSupreme Court of Virginia
DecidedMarch 30, 1933
StatusPublished
Cited by21 cases

This text of 168 S.E. 617 (Aetna Casualty & Surety Co. v. Board of Supervisors) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Casualty & Surety Co. v. Board of Supervisors, 168 S.E. 617, 160 Va. 11, 1933 Va. LEXIS 188 (Va. 1933).

Opinion

Epes, J.,

delivered the opinion of the court.

A. L. Warthen served continuously as treasurer of Warren county from November 3, 1915, to his death on November 9, 1928. At the time of his death he was insolvent and was heavily indebted, as treasurer, to the Commonwealth of Virginia, to Warren county and to the county school board; but there is no evidence which tends to show that any part of this indebtedness arose prior to January 1, 1920.

When Warthen qualified for the four-year term beginning January 1,1920, he gave bond in the penalty of $60,000, with ten persons as his surety. When he qualified for the four-year term beginning January 1, 1924, he gave bond in the penalty of $43,000, with The Aetna Casualty and Surety Company as his surety. Upon his qualification for the four-year term beginning January 1, 1928, he gave bond in the penalty of $60,000 with the National Surety Company as surety. Each of these three bonds is conditioned for the. faithful discharge of his office or trust as treasurer of Warren county.

In September, 1927, The Aetna Casualty and Surety Company instituted proceedings under section 5771, Code of Virginia 1919, to require Warthen to give a new bond, and thereby relieve it from future liability as his surety. Though Warthen did not give a new bond, the court entered an order on October 13, 1927, adjudging that The Aetna Casualty and Surety Company be and was relieved from future liability as surety on Warthen’s official bond after noon of that day, but did not remove him from office. On October [27]*2724, 1927, however, it entered an order removing Warthen from office for failure to give a new bond as treasurer in the penalty of $60,000, as had been required by the court in a second order entered by the court on October 13. War-then moved the court to suspend the order of removal of October 24 to permit him to apply for a writ of error; and on October 31 the court suspended the order of removal1 upon his giving a suspending bond, dated October 31, 1927, in the penalty of $63,000, with forty-six persons as his sureties. Warthen applied for and was granted a writ of error and supersedeas, and on November 19, 1927, gave a supersedeas bond in the penalty of $63,000, with thirty-eight persons as his sureties. On September 12, 1928, this writ of error and supersedeas was “dismissed agreed.”

After Warthen’s death the “board of supervisors of Warren county and S. B. Downing, treasurer of Warren county, at the relation of the board of supervisors of Warren county and the county school board of Warren county” instituted this suit against the administrators and heirs of A. L. Warthen and the sureties on the five bonds above mentioned. In addition to the parties above mentioned, the bill also made parties defendant the sureties on the official bond given by Warthen for his four-year term of office beginning January 1, 1916. On September 16, 1926, certain persons had entered into an agreement with Aetna Casualty and Surety Company to indemnify it against all liability which it might incur on or after that date as surety on Warthen’s bond; and in its answer and cross-bill Aetna Casualty and Surety Company made these persons parties defendant.

The purposes of the bill are (1) to have the court determine the amount due by Warthen, as treasurer, to the Commonwealth of Virginia, (2) to procure an adjudication as to the portions of such indebtedness for which the sureties on his several bonds are liable, respectively, and [28]*28(3) to recover from the sureties on his several bonds the amounts for which they, respectively, are liable to Warren county and the county school board of Warren county.

It is, in effect, admitted that at his death Warthen, as treasurer, was indebted to the Commonwealth in the sum of $2,424.74, and to Warren county in the sum of $81,142.12 (which includes the amount due by him to the county school board) ; and that for his indebtedness to the Commonwealth the National Surety Company is alone of the sureties on his bonds liable.

In so far as the decree of the court relates to Warthen’s indebtedness to the Commonwealth and to the liability of the National Surety Company therefor, it is not appealed from, and may be dismissed from our attention. The real questions in issue relate to the respective liabilities of the sureties on his several bonds to the county and the county school board.

It is not necessary here to relate in detail the pleadings filed in the trial court or here, further than to say that they are sufficient to raise all the questions herein considered.

The cause was referred to a commissioner in chancery who, in due course, made his report. The court confirmed this report in part, but in many of the most essential particulars overruled it, and entered a decree which was, in effect, as follows:

(1) It is not proven that any part of Warthen’s defalcations occurred prior to January 1, 1924; and the sureties on Warthen’s official bond for the term beginning January 1, 1920, are not liable for any part of his indebtedness.

(2) The defalcations occurring from January 1, 1920, to and including October 13, 1927, amounted to $53,833.74; and The Aetna Casualty and Surety Company is liable to Warren county for these defalcations to the full amount of the penalty of its bond ($43,000), with interest thereon from October 13, 1927.

(3) The Aetna Casualty and Surety Company was relieved by the order of October 13, 1927, of the liability for [29]*29defalcations or indebtedness of Warthen occurring after noon on October 13, 1927; and it is not liable for any defalcations occurring after that date. There is no liability on the sureties on the suspending bond.

(4) No defalcations occurred between October 13 and November 19, 1927; but defalcations to the amount of $5,-581.89 occurred between the execution of the supersedeas bond on November 19, 1927, and January 1, 1928, for which amount, with interest from January 1, 1928, the sureties on the supersedeas bond are liable to Warren county; but they are not responsible for the defalcations of Warthen made prior to October 13, 1927.

(5) Defalcations to the amount of $22,126.512 occurred after January 1,1928, for which amount, with interest from November 13, 1928, the National Surety Company is liable to account to Warren county.

(6) The Aetna Casualty and Surety Company paid to Warren county on February 18, 1931, $17,121.74 on account of its liability as surety on Warthen’s bond, and the balance due by it is $35,302.26, with interest from February 18, 1931.

(7) Since Warthen’s death a net amount of $2,286.41 has been collected on tax tickets for years prior to 1927 which were in his hands at the time of his death, and a net amount of $4,096.16 has been collected on tax tickets for the year 1927 which were in his hands at the time of his death, which sums were paid over to S. B. Downing, treasurer of Warren county, on April 22, 1930. The sum of $2,286.41 is to be applied to that part of Warthen’s indebtedness which arose prior to October 13, 1927, which is not recoverable under the bond of The Aetna Casualty and [30]*30Surety Company.

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168 S.E. 617, 160 Va. 11, 1933 Va. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-board-of-supervisors-va-1933.