City of San Bruno v. National Surety Co.

California Court of Appeal Dec 5, 1931 No. Docket No. 7839.Published

AI Brief

AI-generated · verify before citing

Holding. The court held that a city clerk's official bond does not cover acts performed in a separate capacity as a deputy marshal, and that a failure to file required financial statements does not create liability on the bond absent a showing that such failure was the proximate cause of the city's financial loss.

Issues

Whether a city clerk's official bond covers acts of embezzlement committed while acting in the capacity of a deputy marshal.
Whether a city clerk's failure to file accurate financial statements creates liability on an official bond when the underlying loss occurred prior to the filing deadline.

Disposition. affirmed

Quotations verified verbatim against the opinion

“when a person holds two distinct offices the bond of one does not cover his duties in the other”

“It is well settled that a mere dereliction without damage is insufficient to sustain an action on an official bond, and that the liability on such bond extends only to cases where the neglect or misconduct is the proximate cause of the loss.”

THE COURT.

This is an action by the City of San Bruno, a municipal corporation, to recover upon the official bond of its city clerk. A demurrer, both general and special, was sustained to the complaint, and plaintiff having failed to amend judgment was entered in favor of defendant Surety Company. From this judgment plaintiff has appealed.

The complaint alleged that until April 16, 1928, Nettie A. "Willits was the duly elected, qualified and acting city clerk and assessor, and the duly appointed, qualified and acting deputy marshal and deputy tax collector of the municipality; that on April 7, 1927, defendant, as surety for said Willits, executed its bond to plaintiff, reciting the fact that "Willits had been elected city clerk of the municipality, the condition of its obligation being that “if said Nettie A. Willits shall well, truly and faithfully perform all official duties required by law, and all such additional duties as may hereafter be imposed upon her as such officer by any law of the state of California, then the above obligation to be void; otherwise to remain in full force and effect”; that plaintiff’s board of trustees on or about June 15, 1918, adopted an ordinance, numbered 40, which authorized the marshal to appoint the city clerk his deputy to act in his place and stead in the matter of the collection of taxes, and the city clerk to accept the appointment; that at the time of the

[29]

execution of the bond in question “said Nettie A'. Willits was and is duly and regularly appointed, qualified and acting as and is duly and regularly authorized by the city marshal of the City of San Bruno to act as the deputy marshal of the City of San Bruno for the purpose of acting in the place and stead of said marshal in the matter of the collection of taxes; that at the time of the execution and delivery of said bond . . . said Nettie A. Willits, pursuant to Ordinance number 40 . . . duly and regularly accepted the aforesaid appointment of said city marshal for the purpose of acting in the place and stead of said city marshal in the matter of the collection of taxes. . . . That following the execution of said bond . . . and during the time for which said bond was given . . . said Nettie A. Willits did in her official capacity as city clerk, city assessor, and

ex-officio

City of San Bruno v. National Surety Co.

AI Brief

THE COURT.

More from California Court of Appeal

Related research

AI Brief