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Cecil v. Gila County

Supreme Court of Arizona

January 29, 1951

CECIL et al.
v.
GILA COUNTY

Judgment affirmed.

Lewkowitz & Wein, Charles C. Stidham and Jennings, Strouss, Salmon & Trask, Phoenix, for appellants.

Fred O. Wilson, Atty. Gen., and Richard C. Briney, Asst. Atty. Gen., for appellee.

Udall, Superior Court Judge. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur. Evo De Concini, J., being disqualified, the Honorable Don T. Udall, Judge of the Superior Court, Navajo County, was called to sit in his stead.

OPINION

Udall, Superior Court Judge.

The appellee, plaintiff below, sued Barbara Cecil, individually and as Treasurer

Page 218

of Gila County, and the American Employers' Insurance Company, surety upon [71 Ariz. 321] the official bond of Barbara Cecil, to recover certain funds alleged to be missing from the Gila County Treasurer's office. The parties will be designated hereafter as they were in the lower court.

The record shows that on or about October 20, 1947, defendant Cecil reported to the Board of Supervisors of Gila County that the sum of $ 5,650 was missing from the safe in her office, and she asserted that the same had been taken by theft therefrom by some party, or parties, unknown to her. Prior thereto and before defendant Cecil took office on January 1, 1947, she as principal, and defendant American Employers' Insurance Company, a corporation as surety, made, executed and delivered to the Board of Supervisors of Gila County their written bond in favor of the State of Arizona, conditioned upon the faithful performance of such duties as were imposed upon her by law. The last clause thereof reads as follows: "Now, therefore, the condition of the foregoing obligation is such that if the Principal shall faithfully perform such duties as may be imposed on him by law and shall honestly account for all money that may come into his hands in his official capacity during the said term, then this obligation shall be void; otherwise it shall remain in force." (Emphasis supplied.)

It was shown that, notwithstanding demands were made upon defendants for restoration of the missing funds, they failed, neglected and refused to pay the same or any part thereof.

Defendants, who admitted all of the material allegations of the complaint, affirmatively alleged as a defense that defendant Cecil, as county treasurer, was not negligent; that she had exercised due care in the performance of her duties, and hence was not liable for public moneys missing from her office as a result of theft.

The case was tried to the court sitting without a jury and the court found for plaintiff and entered judgment in its favor in the sum of $ 5,650 with interest. After denial of motion for new trial this appeal followed.

Defendants base their appeal on six assignments of error. The first three assignments are wholly inadequate, since they do not comply with the rules governing appeals laid down by this court. They are merely conclusions of defendants and the court is not given the slightest indication as to where in the record the errors complained of may be found. We have repeatedly decided that such faulty assignments need not be considered. One of the more recent ...


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