Douglass v. Walker

CONREY, P. J.

In each of these actions the appeal is by the plaintiff, from a judgment of dismissal entered after the court had sustained the several demurrers to the amended complaint, and after the plaintiff had failed to further amend within the time allowed therefor. In each case there was filed an amendment to the amended complaint on the same day when the court ruled on the demurrers. Counsel have assumed, and we shall adopt that assumption, that the demurrers were presented and considered as upon the respective amended complaints as thus amended. The actions were brought to recover upon separate official bonds of the several officers named, to compensate for damages incurred by reason of the failure, neglect and omission of each of the bonded officers to faithfully perform his official duties as required by law, all with resulting loss to the plaintiffs.

Defendant Walker held the office of state building and loan commissioner from January 6, 1927, to August 12, 1929, and defendant Whitmore occupied that office from August 12, 1929, to December 31, 1930. Defendant Dorothy was a duly appointed and qualified deputy state building and loan commissioner from October 1, 1927, to December 12, 1930; defendant Barnes, from June 28, 1927, duration of term not shown; defendant Stern from August 2, 1929, to December 12, 1930.

The said official bonds were the bonds required to be executed by and on behalf of such officers in accordance with the provisions of the Building and Loan Commission Act

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approved April 5, 1911, as amended, and especially section 4 thereof (Stats. 1921, p. 1573; Deering’s Gen. Laws, 1923 ed., Act 982, p. 358), which reads as follows: “Before entering upon their duties, the commissioner and his deputies shall each execute an official bond in the penal sum of five thousand dollars, each of which bonds must be guaranteed by a duly authorized surety or bonding company, the premium on which shall be paid from the allowance for office expenses. Any bond executed under this section must be approved by the governor and filed and reported in the office of the secretary of state, and such commissioner and deputies must take the oath of office as prescribed by the Political Code for the state officers in general.”

For a statement of the required condition of an official bond, and the breaches of condition whereby liability is incurred, we are referred to Political Code, sections 954, 958, 959, 960. It is further provided (see. 961) that an official bond is obligatory “for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity; and any person so injured or ■ aggrieved may bring suit on such bond, in his own name, without an assignment thereof”. As will be seen, we do not need to discuss the questions which have been argued, relating to these sections and the conditions to which they apply.