Union Bank & Trust Co. v. County of Los Angeles

THE COURT. Upon further consideration of this case on rehearing we adopt the former opinion as modified:

“This action was brought against the defendant Lampton, as county clerk of Los Angeles County, and the sureties on his official bond, to recover certain money deposited with the said clerk and embezzled by his chief deputy.

“In 1930 a criminal trial was in progress in Los Angeles County, in which two persons were charged with an attempt to extort $75,000 from Charles H. Crawford. With his consent, 75 bills of $1,000 denomination were received in evidence at the trial. Thereafter the deputy clerk of the [677]trial department delivered them to Liberty A. Hill, chief deputy in the county clerk’s office. The practice of the defendant Lampton was to have such exhibits kept in a bank safe deposit box. He entrusted the keys of the box to his chief deputy, and delegated to him the care and custody of the exhibits. Hill put the bills in the box, but later withdrew them and embezzled the money.

“Thereafter plaintiff, executor of the estate of Crawford, brought this action. Prior to his death, Crawford had assigned the sum of $10,000 out of such fund, and plaintiff in intervention seeks the recovery of that sum. The trial court held that neither the defendant Lampton, county clerk, nor his sureties, could be held liable for the loss. Prom this judgment plaintiff in intervention appealed.

“The first theory advanced to absolve defendants from liability is that the bond of the county clerk does not cover dereliction of duty in the separate office of clerk of the superior court, held ex officio. It is contended that these are separate and distinct offices; that defendant Lampton received the money in question as clerk of the superior court and not as county clerk; that, therefore, the bond which he furnished as county clerk does not cover the present loss. (See San Bruno v. National Surety Co., 119 Cal. App. 27, 31 [5 Pac. (2d) 951]; People v. Burkhart, 76 Cal. 606 [18 Pac. 776].)

“In examining this contention, it may be well to bear in mind the consequences thereof. Defendant Lampton has given but one official bond, the only one required of him by law, that as county clerk. It appears, however, that in his capacity as ex officio clerk of the superior court he received during 1929 and 1930 over $3,000,000 in trust funds, fees and fines. Under defendants’ theory this large sum was handled by a public officer with no security whatever for his faithful performance. In the case of defendant Lampton, this would be true for some eighteen years. Moreover, plaintiff points to section 996 of the Political Code, providing that an office becomes vacant upon the refusal or neglect of an officer to file his official bond within 30 days after notice of his election or appointment. The view of defendants, therefore, leads inevitably to the conclusion that either the office of clerk of the superior court in and for the county of Los Angeles is wholly without the protection of a surety