County of Snohomish v. Ruff , 15 Wash. 637 ( 1896 )

The opinion of the.court was delivered by

Scott, J.

The respondent Ruff was the auditor of Snohomish county, and the other respondents were sureties on his official bond. The county brought an action on the bond, alleging in substance, as one ground for recovery, that said auditor was ex-officio clerk of the board of county commissioners, and was required by an order of the board to act as purchasing agent for the county, and that he had received money for that purpose and had failed to account for $1,818.71.

The respondents moved to strike said allegations from the complaint, which motion was granted by the court, and the county has appealed therefrom. The respondents move to dismiss the appeal upon two grounds, one of which is that the notice of appeal was not served upon all of them.

It is conceded that service of the notice of appeal was made on the attorneys for all of the respondents who had filed answers in the action prior to the giving of such notice, which service was had on the 30th day of March, 1896. The motion to dismiss is based upon the fact that several of the defendants served an answer on the attorney for the county on the 3d day of July, 1895, but the same was not filed until April 6, 1896, after fhe notice of appeal had been given. We do not think, under the circumstances, that these defendants were entitled or required to he served with the notice of appeal. They did not contest the action and had not appeared therein previous to the notice, and the mere fact that they came in after the rendition of judgment and notice of appeal to this court and filed an answer in said cause, although the same had been previously served on the attorney for the county, did not place them in a position requiring the plaintiff to serve them with the appeal notice.

It is next contended that it was not an appealable order, but this cannot he sustained, for it affected a substantial right and determined the action as to the particular matter in issue, and was in effect a judgment against the plaintiff thereon. Motion denied.

It is next contended that the aforesaid matters were properly stricken from the complaint on the ground that the sureties were not liable therefor, but this contention cannot be sustained, for the condition of the bond was that the auditor should faithfully perform all of the duties required of him by law, etc., and the law (Gen. Stat., §179) makes the auditor ex-officio clerk of the board of county commissioners. Sec. 181 makes it his duty as such clerk to perform all of the duties required by law or any rule or order of the board, and he was required by the order of the board to act as purchasing agent as aforesaid.

Under the well settled law, the statutes in force at the time relating to the duties of the auditor should be construed as, a part of the bond, and it was therefore a condition of the bond that the auditor should faithfully perform all duties required of him by any rule or order of the board of county commissioners.

It may be conceded, as far as this case is concerned, that the commissioners could require of him only such duties as were fairly connected with his position as auditor, and as clerk of the board, and could not require of him something that was entirely foreign to his office, and hold his bondsmen liable. E]or these matters were fairly within the scope of his duties, and we are of the opinion that the county is entitled to recover upon his official bond for any delinquencies therein.

Reversed and remanded.

Dunbar and Anders, JJ., concur.

Hoyt, C. J., dissents.