
    City of Van Wert, Appellee, v. Gamble et al., Appellants.
    (Decided October 19, 1937.)
    
      
      Mr. J. F. Beam, for appellee.
    
      Messrs. Conn & Stroup, for appellants.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Van Wert county, Ohio.

On March 14, 1932, the council of the city of Van Wert passed an ordinance establishing the office of Secretary of the Water Works Department of the Public Service Department of the city, fixing the compensation of the secretary at $125 per month payable in semi-monthly installments on the first and fifteenth days of each and every month, and providing that the secretary should give bond in the sum of $1,000. This ordinance was approved by the mayor of the city on the date of its passage.

On May 2, 1932, the mayor of the city appointed his son Doyt C. Gamble as such secretary, and on the same day, for the purpose of qualifying Doyt C. Gamble as such secretary under the appointment, Doyt C. Gamble as principal and Nora M. Tumbleson and Adam Gilliland as sureties executed and filed with the city their bond of "that date in the principal sum of $1,000, which bond among other things recites that Doyt O. Gamble has been duly appointed and qualified as Secretary of the Waterworks Department of the city of Van Wert in Van Wert county, state of Ohio, for a term of indefinite years from the second day of May, 1932, and until his successor is elected or appointed and qualified. The bond is conditioned so that if Doyt C. Gamble should faithfully perform the duties of the office of Secretary of the Waterworks Department of the city of. Van Wert during his continuance in office for the above mentioned term, then the obligation should be void; otherwise it is to be and remain in full force and effect.

One week later, May 9, 1932, the council passed another ordinance similar to the one above referred to, purporting to establish the same office, fixing the compensation of the secretary at $1,200 per year payable in semi-monthly installments on the first and fifteenth days of each and every month, providing that the secretary should give bond in the sum of $10,000, and repealing the ordinance hereinbefore first mentioned. This ordinance was vetoed by the mayor on May 23, 1932, and passed by the council over the mayor’s veto, on the thirteenth day of June, 1932.

On May 20, 1932, and prior to the veto by the mayor of the ordinance last referred to, and its passage over his veto by the council, Doyt C. Gamble as principal and Maryland Casualty Company as surety executed and delivered their bond to the city in the principal sum of $10,000, which bond recites that Doyt C. Gamble was on the second day of May, 1932, duly appointed as Secretary of the Water Works Department in and for the city of Van Wert, state of Ohio, for the period of one year from the second day of May, 1932, and that the bond might be renewed from year to year, at the option of the company, by the issuance of a continuation certificate. It is conditioned so that if Doyt C. Gamble should faithfully and diligently discharge his duties as such Secretary of the Water Works Department then the obligation should be void and of no effect; otherwise it is to be and remain in full force. This bond was given for the purpose of conforming to the provisions of the ordinance passed May 9,1932.

Neither of the ordinances fixed any term of office for the Secretary of the Water Works Department.

No premium was paid for the $1,000 bond but the city paid the entire premium for one year for the $10,000 bond.

Doyt C. Gamble continued in office from May 2,1932, until December 31, 1933, when a new mayor took office, discharged him and appointed a Mr. Dias to the position.

During the month of April, 1934, the state examiners made an examination of the books and records of the city and filed a report with the Bureau of Inspection and Supervision of Public Offices of the state- of Ohio, in which they reported shortages occurring during the occupancy of said office by Gamble, as follows:

Monthly collection Amount
July, 1932 ...................$ 6.00
October, 1932 ................. 74.18
January, 1933................. 380.73
April, 1933 ................... 449.29
July, 1933 ............. 442.30
October, 1933 ................. 501.16
Total .....................$1,853.66

It will be noted that all the claimed shortages occurred after the giving of the second bond in the amount of $10,000 by Gamble, and that the shortages of July and October, 1933, occurred after the expiration of one year from the giving of the $10,000 bond.

On June 11, 1935, the city of Van Wert, Ohio, which is the appellee herein, filed its petition in the Common Pleas Court of Van Wert county, and on August 27, 1936, supplemented its petition by an amended petition against Doyt C. Gamble as principal and Nora M. Tumbleson and Adam Gilliland as sureties on the $1,000 bond, and Doyt C. Gamble as principal and Maryland Casualty Company, Baltimore, as surety on the $10,000 bond, seeking á recovery from them jointly and severally for the amount of such claimed shortage, with interest at six per cent from the thirty-first day of December, 1933.

On September 1, 1936, Doyt O. Gamble, Nora M. Tnmbleson and Adam Gilliland filed tbeir separate answers to tbe amended petition, alleging among other things that Tnmbleson and Gilliland signed the $1,000 bond for Gamble bnt that because of the passing of the last mentioned ordinance by the city council and the giving by Gamble of the $10,000 bond as required by the ordinance, the bond so signed by Tnmbleson and Gilliland as sureties was thereby rejected and ceased to be of any force and effect after May 21, 1932, which was the date the $10,000 bond was accepted by the city. The city of Van Wert filed a reply forthwith which denied the averments of the separate answers.

The case proceeded to trial. A jury was waived and the matter was presented to the court.

The city offered evidence to prove that the bonds were duly filed as provided by law, and that Mr. Gamble’s salary was paid to him by the city throughout his term of office. Both bonds were offered and admitted in evidence. The city then offered evidence showing the examiners’ report had been duly filed in accordance with the statutes, and the witness, using a copy of such report, called attention to the parts pertaining to the water works finding. A number of water works receipts were offered and received in evidence. A number of checks purporting to show payments of water rentals were offered and received in evidence. A certificate of the then service director of the city, showing the appointment of Doyt O. Gamble to the position in the water works office, was offered and admitted under certain qualifications. The ledger of the Water Works Department was offered and admitted. The city then offered the entire report of the examiners in evidence, to which the defendants Gamble, Tnmbleson and Gilliland objected. Their objections were overruled by the court and the report admitted in evidence.

At the close of the plaintiff’s evidence the defendants Gamble, Tumbleson and Gilliland moved for the dismissal of the action upon the grounds that there was an entire failure of evidence to show that the defendant Gamble was in any wise responsible for this money; that there was no showing that there was any defalcation on his part; and that there was not a scintilla of evidence showing hip to be responsible for anything. This motion was overruled by the court.

The defendants Gamble, Tumbleson and Gilliland then offered evidence of the passage of both of the ordinances, and copies thereof were made exhibits and admitted in evidence. They then rested. The plaintiff then rested, and the motions were renewed and overruled by the court.

The court then found that there was due and payable to the plaintiff from the defendant Doyt G. Gamble, the sum of $1,853.66 with interest at six per cent per annum from December 31, 1933; that the liability of the Maryland Casualty Company on its $10,000 bond was limited to the amount of $910.20 with interest, which the court found due the plaintiff for shortages occurring during the months of July and October of 1932, and January and April, 1933, during which time the defendants Nora M. Tumbleson and Adam Gilliland were also liable on their $1,000 bond covering this same period of time; that as between these bondsmen, the defendants Nora M. Tumbleson and Adam Gilliland should bear one-eleventh of the liability found due from the defendant Maryland Casualty Company, to the plaintiff; and that the defendants Nora M. Tumbleson and Adam Gilliland, were also liable to the plaintiff on their $1,000 bond for the sum of $943.46 with interest, which the court found due to the plaintiff for shortages of the defendant Doyt C. Gamble, occurring during the months of July and October, 1933, but in all the liability was not to exceed $1,000, exclusive of interest.

It was further ordered and adjudged by the court that the plaintiff recover from the defendant Doyt C. Gamble, the sum of $1,853.66, together with interest thereon at the rate of six per cent per annum from December 31, 1933; that the plaintiff recover from the defendant Maryland Casualty Company, as surety for the defendant Doyt C. Gamble, the sum of $910.20 together with interest thereon at the rate of six per cent per annum from the thirty-first day of December, 1933; and that the plaintiff recover from the defendants Nora M. Tumbleson and Adam Gilliland, jointly and severally, as sureties for the defendant Doyt C. Gamble, the sum of $1,000 together with interest thereon at the rate of six per cent per annum from the thirty-first day of December, 1933.

Motion for new trial was filed by the defendants Gamble, Tumbleson and Gilliland, and overruled, and judgment entered as above set forth. The defendants Gamble, Tumbleson and Gilliland perfected their appeal on questions of law from this judgment. Neither the plaintiff, city of Van Wert, nor the defendant, Maryland Casualty Company, perfected an appeal or cross-appeal from the judgment.

The appellants Gamble, Tumbleson and Gilliland make a number of assignments of error but, in so far as the appellants Tumbleson and Gilliland are concerned, a consideration of the assignment of error that the finding and judgment of the court are contrary to law disposes of the entire case. This will be the first assignment considered.

It is their contention, under this assignment of error, that as the ordinance of May 2, 1932, under which the bond for $1,000 was given by them as sureties, was repealed by the ordinance passed by the council May 9th and afterwards vetoed by the mayor and thereafter passed by the council over the mayor’s veto, and as a later bond of $10,000 was given by Gamble as principal and Maryland Casualty Company as surety and accepted by the city under the terms of this ordinance, the bond for $1,000 which was signed by them was supplanted and discharged thereby, and as no shortage occurred during the period from May 2, 1932, to the time the $10,000 bond became effective, they are not liable on the $1,000 bond on which they are sureties.

The ordinance of May 9, 1932, above mentioned, prescribed that a $10,000 bond be given by the Secretary of the "Water Works Department. It did not prescribe that such bond should be in addition to the $1,000 bond prescribed by the ordinance of May 2, 1932, and when the $10,000 bond was given and accepted such bond in and of itself, without reference to the $1,000 bond, conformed to and complied with the ordinance of May 9,1932. The giving of the $10,000 bond was a condition precedent to Gamble continuing to occupy the office after the ordinance of May 9th became effective. His tenure of office, therefore, after the ordinance of May 9th became effective, was by virtue of the $10,000 bond, not the $1,000 bond. The $10,000 bond was therefore substituted for and supplanted the $1,000 bond upon its acceptance by the city, and the $1,000 bond being supplanted and superseded by the $10,000 bond, was discharged and rendered ineffective thereafter.

As none of the shortages for which recovery is sought occurred during the period of the effectiveness of the $1,000 bond, Tumbleson and Gilliland, sureties on such bond, are not liable for any of such shortages and the judgment as to them is for this reason contrary to law and will be reversed and this court rendering the judgment the trial court should have rendered will enter final judgment in favor of such appellants at the costs of the appellee.

In so far as Gamble is concerned, the above mentioned assignment of error as well as all other assignments of error are based on the contention that the report of the examiners was erroneously admitted in evidence. This report was admitted in conformity with the provisions of the General Code, and its admission was not erroneous. And with this evidence in the record the judgment as against Doyt C. Gamble is neither contrary to law by reason of not being supported by any evidence nor against the weight of the evidence, and the judgment as to him will be affirmed at his costs.

Judgment reversed in part and affirmed in part.

Crow and Klinger, JJ., concur.  