70 Wis. 352 | Wis. | 1888
The following opinion was filed November 22, 1887:
This action is brought to recover against the respondents as sureties upon the official bond of Edward Ehlers, deceased. The material facts in the case are the following: At the general election in 1872 Edward Eh-lers was elected treasurer of the county of Milwaukee, and he assumed his office in January, 1873; his term of office expired in January, 1875. Upon rendering his final account to the county it was found that he had converted something over $10,000 of the funds belonging to the county, and was unable to, and failed to, pay that amount to his successor in office, as required by law. 'When he assumed his office, in 1873, there came into his hands, as treasurer of said countjq two separate funds. One fund was what is termed the general fund of the county, consisting of the moneys received from taxation and other sources, the custody and disbursement of which was, by the general laws of the state, committed to the treasurer of the county. The other fund was a special fund arising from a sale of the
Before entering upon the duties of his office, the said Ehlers gave his bond, with satisfactory sureties, required to be given by the treasurer under the general law of the state, and at the same time he gave a bond as required by ch. 400, Private and Local Laws of 1811. Sec. 3 of said ch. 400, P. & L. Laws of 1811, after providing how the bonds of the county should be issued and how negotiated, provides “ that the county treasurer shall keep and maintain all moneys received from the sale of the bonds so to be issued, in a fund separate from all other moneys belonging; to said county, and no part of the said bonds, or of the money arising from the sale thereof, shall be expended for, or applied to, any purpose, except to defray the expense of building a court house for said county; and the said treasurer and his sureties shall be liable to said county for misapplication of the same or any part thereof; and the.said treasurer, before he shall receive said bonds for any purpose whatever, shall execute to the county board of supei-visors of said county a bond, with three or more sureties, in the penal sum of double the amount of the bonds so to be received by him, conditioned that he will perform faithfully all orders and resolutions of said county board of supervisors which may be passed by virtue of the powers
"When Ehlers assumed the office of treasurer in 1873, the bonds had been sold by his predecessor in office, and there remained in his hands the said sum of $94,073 of the money received upon the sale of said bonds, which had not been expended in the construction of said court house up to that time, but was subject to the orders of the county board for that purpose. Before said predecessor paid over this $94,073 to Ehlers, his successor in ofíjee, said Ehlers exe-' cuted his bond to the said county board of supervisors' in the penal sum of $200,000, with the respondents as his sureties, conditioned as follows: “Whereas the above bounden Edward Ehlers was, on the 5th day of November, A. D.
In 1874 the legislature passed an act in regard to this court house fund, viz., ch. 178, Laws of 1874. Sec. 1 of this chapter reads as follows: “That all moneys heretofore raised in the county of Milwaukee under and in pursuance of chapter 488 of the Private & Local Laws of 1870, chapter 400 of the Private & Local Laws of 1871, as amended by chapter 40 of the Private & Local Acts of 1872, entitled ‘Acts to empower the county of Milwaukee to raise money to build a court house,’ or either of said acts, and not expended, be and the same is hereby turned over to the general fund of the treasury of said county, and made a part thereof; and that the treasurer and his sureties be and they are hereby made liable for said money, the same as any other money in said county.” This was published March 27, 1874, and took effect on that day. The acts of 1870 and 1872, referred to in the act of 1874, do not in any way change the provisions of ch. 400, P. & L. Laws of 1871, except that the act of 1872 allowed the issuing of bonds to a larger amount than the act of 1871.
It also appears from the records of this court, and from the evidence produced upon the trial of this action in the circuit court, that the said county board of Milwaukee county had, previous to the commencement of this action, brought an action upon the general bond of said treasurer, against him and his sureties on such' general bond, for the purpose of recovering the said sum of over $10,000' which remained unaccounted for by said treasurer. That case was referred to the Hon. A. E. E. Butler of Milwaukee, to hear, try, and determine the same; and after hearing the evidence in the case he found that, prior to March 27, i 874, Ehlers had converted, and appropriated to his own use, $10,150.30 of the said court house fund, and that he did not convert or appropriate to his own use any other moneys of the county, except such as were part of the sum of $94,073, being the money belonging to the said court house fund; and he also found, as a matter of law, that the sureties on the treasurer’s general bond were not liable to the county for the conversion of said court house fund, if converted before the act of March, 1874, took effect. This opinion and decision of Mr. Butler was confirmed by the circuit court, and upon appeal to this court the judgment in that case -was affirmed. See Milwaukee Co. v. Ehlers, 45 Wis. 281. The case in 45 Wis. 281, and Mil
The learned circuit judge who tried the case made his findings, ten in number. As to the first four findings there is no dispute. Ehlers was the treasurer; the defendants executed the bond in suit; the bond was approved on the 8th of January, 1873; William Kennedy, the predecessor in the office of Ehlers, paid over to him the said sum of $94,073 belonging to the court house fund. The fifth finding, if it means that Ehlers did in fact transfer the unex-pended balance of the court house fund to the account of the general fund, we think, as hereinafter stated, is not supported by the evidence; but if this finding simply
The following are the ninth and tenth findings:
“That the general funds of the county-, for a short time after entering upon his office, were kept by Ehlers on deposit in the Bank of Commerce; but soon thereafter, to wit, on the 10th day of February, 1873, the official account as treasurer was discontinued, and the moneys belonging to the county were commingled by' him with his private funds, and used indiscriminately for official and individual purposes; which state of things continued uninterruptedly until the end of his term. That the proofs do not demonstrate with sufficient certainty to satisfy the court in all instances to what fund moneys deposited or drawn belonged, nor to which account they should be charged, so that it has not been possible for it, having called in expert accountants to its aid, to state an account which will indicate when the deficiency arose or to which fund it belongs. That the plaintiff, having the burden of proof, fails to overcome the effect of the testimony of Ehlers that the deficiency did not arise in the court house funds, and the testimony of Chas. C. Schmidt, tending to show that 'from the 27th day of March, 1871, until the 2d day of May, 1871, there was on deposit in the Second. "Ward Savings Bank, to the credit of the £ Court House Fund, Edward Ehlers, Treasurer,’ moneys in excess of the amount then due and owing, and that the balance of this fund on May 1, 1871, was, on the 2d day of May, 1871, drawn out in two certificates of deposit, which were applied in discharge of interest on court house bonds, and the school fund properly chargeable to county expenses.
“That it is not established by the evidence in this case,
These findings of fact wore each separately excepted to by the appellant. The learned counsel for the respondents urges that because the plaintiff excepted to each and every finding of fact, although there be a separate exception to each finding, this amounts in law to one general exception to all the findings;- and he cites several decisions of this court which he claims sustain this contention. We do not think the authorities cited sustain the learned counsel in his proposition. All the cases referred to were cases in which the exception was a general one to several findings, and not separate exceptions to each finding. If the party is of the opinion that none of the findings of fact are sustained by the evidence, we can conceive of no other way in which he can bring the several findings before this court for review except by a separate exception to each of them. There can be no doubt, we think, but that the exceptions are sufficient to bring the question before this court as to the sufficiency of the evidence to sustain the findings.
The only material findings about which there is any question are the ninth and tenth, findings above quoted. The learned counsel for the respondents invokes the well-established rule in this court that a finding of fact by the trial court will not be reversed by this court on appeal unless the decided preponderance of the evidence is against the finding. We are not disposed to question this rule. But if it be evident from the finding that the trial court based its finding upon a mistaken view of the law as to the legal effect of the evidence produced, or upon the question
It seems to us that the learned circuit judge based his ninth and tenth findings — first, upon the idea that it was necessary for the appellant to prove as a fact that the treasurer had appropriated the court house funds before the 2d day of May, 1874, “ to his own use and benefit,” in order to show that he had misappropriated it in a way to charge his sureties for such misappropriation; and, secondly, in the ninth finding, the learned circuit judge says: “That the proofs do not demonstrate with sufficient certainty to satisfy the court, in all instances, to what funds money deposited or drawn belonged, nor to which account they should be charged.” And he also seems to give considerable weight to the simple statement, without any explanation, made by Ehlers, that the deficiency was not in the court house fund, and the opinion of Chas. C. Schmidt, the expert witness, that he thought the deficiency in the funds did not arise until the latter part of 1874. The assertion of Ehlers can have no weight, when not sustained by the evidence in the case, and the opinion of Schmidt is in plain contradiction to the evidence of Ehlers, who testifies that he began to abstract the funds of the county for his own private purposes early in 1873.
Certain facts seem to us to be clearly established by the evidence: (1) That the court house fund was deposited by Ehlers in the Second Ward Bank when it first came into his hands in January, 1873; (2) that he never had any of those funds in any other place until after the 2d day of May, 1874; (3) that only the sum of $81,508.16 was ever drawn out of said court house fund upon orders which the treasurer was authorized to pay out of such fund; and (4) it is con
That the paying out this court house fund for general county purposes previous to the day when ch. 178, Laws of 1874, took effect, was a breach of the special bond upon which this action is brought, there can be no chance for dispute. The statute creating this fund is very specific in its provisions; it expressly declares for what purposes it shall be used, and negatives the right to use it for any other purpose; requires the treasurer to keep it separate and apart from all other funds in his possession; and the bond given binds the treasurer to keep it separately, and not to use the fund except in the manner and for the purposes mentioned in the statute. There was, therefore, a clear breach of the conditions of this bond on the 5th of February, 1874. The breach was a substantial breach, and can only be cured by showing that the funds so wrongfully used by the treasurér were returned to said fund bjr him previous to the day when the balance in the Second Ward Bank was transferred to the general fund, or at some time thereafter and before the end of his term of office. This was the effect of the decision in the former case of Milwaukee Co. v. Ehlers, 45 Wis. 281. It was substantially held in that case that, having shown a misappropriation in the special fund, February 5, 1874, it became the duty of those
The evidence as presented to this court in this case is substantially the same as that contained in the former record, with the exception that in the former case checks or drafts upon the funds in the Second Ward Bank, drawn by the treasurer upon that fund to the amount of several thousand dollars, were not cleariy shown to have been drawn by the treasurer for any public purpose, and therefore it might have been urged, and perhaps was urged, that such checks and drafts were drawn for the personal* benefit of the treasurer and not in payment of claims against the county. On the trial in this case most of these checks and drafts are shown to have been drawn to pay legitimate claims against the county. But this evidence does not change the fact that the special fund was entirely misappropriated on the 7th day of February, 1874. In law it was as much a misappropriation of this special fund to pay it out in discharge of general claims
The evidence shows that after the 7th day of February, 1874, and previous to the 2d day of May, 1874, all the monej1 deposited in the Second Ward Bank by the treasurer was money belonging to the general funds of the county, except two sums of interest amounting in all to the sum of $569.18. The moneys belonging to the county, deposited in said bank during the same time, amounted in all to the sum of $60,796.47. The money drawn out of the bank in the mean time for all purposes was $38,356.43. The overdraft on thé 7th of February was $5,890.68. This, added to the money drawn out, makes $44,247.11. This sum deducted from the amount of county funds paid into the bank, leaves the sum of $16,549.36. Add to this the two items of interest, $569.18, and the balance remaining in the bank, May 2,1874, is $17,118.54. The evidence shows that this amount of money was in the Second Ward Bank, to the credit of the treasurer, May 2, 1874, when the formal transfer was made to the general fund of the balance remaining unexpended of the court house fund, namely, $12,562.88. It is evident, however, that none of this money was the private property of the treasurer, except the sum of interest above mentioned, $569.18. All the balance of the money in the bank was the money of the county, belonging to the general fund. There was nothing therefore in the bank account belonging to the treasurer which could be lawfully applied to make up the deficiency in the special fund at that date, unless it was made to appear that he had,
If it be urged by the respondent that the evidence does not conclusively show that the treasurer had not other funds,
The same result is reached in other ways as shown by the brief of counsel for appellant. If the treasurer did not have this money on hand, May 2, 1874, when he made a formal transfer of the same to his general fund account, then his sureties on that account are not liable for the default. The case is similar to the-.case of two sets of bondsmen for the same officer, when he is elected to succeed himself. The bondsmen for the first term are liable for all defaults during that term; the bondsmen for the second term are liable for all defaults during the second term, and a mere formal transfer of any balance which ought to have been on band at the expiration, of the first term to the account of the second term will not make the second bondsmen liable, when the fact is established that no funds were in fact on hand to transfer to the account of such second term. U. S. v. Earhart, 4 Sawy. 245; Bruce v. U. S. 17 How. 437; Vivian v. Otis, 24 Wis. 518; State v. Mills, 55 Wis. 229. In the case at bar the general bondsmen are liable for any default in the general funds of the county; the bondsmen on the special bond are liable for any default in the special fund; but by the act of March, 1874, the special fund is transferred to the general fund, and after such transfer the general bondsmen became liable for the fund so transferred; but when it appears that such transfer was a mere formal one, and that no money from the special fund ever in fact passed to the general fund, it is clear, under all the authorities, that the bondsmen upon the general bond are not liable for the sum
If the evidence be applied to the situation of affairs on the 27th of March, 1874, when the act of the legislature declared the balance of the special fund should thereafter be considered as a part of the general fund and that the general bondsmen should thereafter be responsible for the same, the evidence does not make any better showing in favor of the special bondsmen.
The evidence having, as we think, satisfactorily shown that when the formal transfer of the balance of the special court house fund was made by Fillers on his official books, on May 2, 1874, and on the 27th day of March, 1874, when the act of the legislature declared that this balance should thereafter be a part of the general funds of the county and that the bondsmen for the general fund should be thereafter accountable therefor, there was, in fact, no balance of such special fund in the hands of the treasurer, and therefore none was transferred to the general account, either by the formal transfer made on the treasurer’s book, or by the act of the legislature of March 27, 1874, it is evident that, upon legal principles, the general bondsmen are not liable for such balance of the special fund, and that the special bondsmen are liable for its misappropriation, unless it has been clearly shown that, after said dates, said treasurer has paid out of his personal funds claims chargeable to the general funds of the county to an amount equal to the deficit in such special fund. Had this been shown, the default of the special bondsmen would have been cured, and the ultimate shortage would be chargeable to the general bondsmen. See State v. Mills, 55 Wis. 229, 244. Such payment out of his personal funds would have been an equivalent, so far as the county is concerned, to making an actual transfer of the money at the dates mentioned, in the absence of evidence showing 'that the treasurer, after
There is no evidence in this case showing that any spell thing was done by the treasurer. But the learned counsel for the respondents insists that there is evidence in the case ■which tends to show that this must have been done. He insists that the evidence shows that on the 1st da3>- of 'November, 1871, the treasurer had deposited in the Bank of Commerce money to his credit, amounting to more than $10,000 more than the amount of the public funds then in his hands; and he therefore argues that he must have made up all deficiencies in his accounts with the county to that date, and had a surplus to his personal credit of over $10,000. If the fact was clearly established as it is claimed by the learned counsel of the respondents, there would be great force in the claim that the deficit in the treasurer’s account must have taken place after that date. But upon a consideration of all the evidence in the case we think the fact is not established. The evidence, it is true, shows that on the 1st of November, 1874, the credit of the funds in the treasurer’s hands was only the sum of $3,754.84, and that on that date he had a credit of $13,715.64 in the' Bank of Commerce. This would, as claimed and unexplained, show that the treasurer was not short on that particular day. But there is other evidence which pretty clearly shows that this apparent surplus of funds on that particular day was merely apparent and not real.
The evidence also shows that on the 1st day of October, 1874, the treasurer had to his credit only the sum of $4,174.07, and that on the same day the funds in his hands had a credit of $30,289.28; that on December 1, 1874, the treasurer had nothing to his credit in said bank, and had overdrawn his account $609.24, and that the funds in his hands had a credit of $13,743.83. This apparent surplus in the bank, November 1st, is, we think, accounted for by
It is urged by the learned counsel for the respondents that the shortage in the treasurer’s account was undoubtedly created by his expenditures of the public funds in his attempt to be re-elected in 1874. We do not think this contention can be sustained, for two reasons: First, it is contrary to the direct evidence of Mr. Ehlers, who testifies that the misappropriation of the funds commenced early in his term of office, and continued until about the last of November, 1874; and, second, this claim would, upon the theory of the learned counsel for the respondents that Ehlers had on hand, November 1, 1874, about $10,000 more than he was indebted to the funds in his hands, prove that in the month of November, 1874, he expended for his personal purposes the said sum of $10,000, and the further sum
There is nothing which has been done by the county board of supervisors which should estop the county from enforcing its claim against the respondents. See Jefferson Co. v. Jones, 19 Wis. 51; Kewaunee Co. v. Knipfer, 37 Wis. 496; Chenango v. Birdsall, 4 Wend. 453. After a careful consideration of all thg evidence in the case, we see no reason for changing the opinion we came to in the former case, viz., that the shortage in the account of the treasurer, to the extent at least of the balance remaining unaccounted for, was in the court house fund and not in the general fund.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to that court to enter judgment in favor of the appellant and against the respondents for the sum of $8,260.27, with interest on said sum at the rate of seven per cent, per annum, from the 20th day of January, 1875, to the date of the entry of such judgment.
Amotion for a rehearing was denied January 10, 1888.