13 S.D. 7 | S.D. | 1900
This is an action against Benjamin M. Tunley, formerly treasurer of Custer county, S. D., and the sureties upon his official bond. The judgment was in favor of the plaintiff for the sum of $659.71, and from this judgment both parlies appeal,
In 1890 the defendant Tunley was elected county treasurer of the plaintiff county, and was re-elected in 1892, holding the office from January. 1891, to January, 1895. The sureties who are defendants in this action were sureties upon his official bond for the second term, commencing January 3, 1893. At the time the sureties executed the bond in question, tire said Tunley had in his hands as county treasurer, as shown by the books in his office and the auditor's office, the sum of $21,009.69. On the trial there was evidence tending to prove, and the referee so found, that during his first term he had received $1,090.70 (which was reduced by order of the court to $631) which was not charged to the treasurer on the records of his office, nor on the records of the auditor’s office. These sums, it appears, were received by the treasurer as partial payments from various taxpayers on account of their personal property taxes, and for which receipts were given by the treasurer as such, but not the usual official tax receipts. It further appears that during His second term of office he received in like manner $757.57. These amounts the treasurer had not charged himself with in the official records of his own office, and he was not charged with these sums, or any portion of them, by
The next contention on the part of the sureties is that they, being sureties upon his official bond for the second term, are not liable for the moneys received by the treasurer on account of partial payments of personal property taxes which are not included in the amount shown to be due from him to the county by his own official records and the records in the office of the county auditor at the time they executed his official bond. Ordinarily, this might be true, and, if there was nothing in this .case to show that the treasurer had accounted for this money in
The sureties further contend that by virtue of the agreement entered into between themselves and the county on the 18th day of February, 1895, the amount for which they should be liable was fixed at “about $700,” and that the county cannot now recover an amount in excess of that sum. But we do not so construe the agreement. The object and purpose of the agreement evidently was to enable the county to bring suits against the two banks where the county treasurer had deposited certain county moneys without releasing the sureties, and was not inlended as an account stated between the sureties and the county as to the amount for which they should be held liable It would seem from the statement contained in the agreement that the sum of “about $700” was made with reference to the amount known at that time to have been collected by the treasurer. We are of the opinion, therefore, that the county is not limited to that amount, and may collect the entire
It is further contended on the part of the sureties that the referee should have allowed them, as credit for errors in favor of Tunley, the sum of $218.35. The findings of a referee or of a court will not be disturbed by the appellate court unless they are clearly against the preponderance of the evidence. We are not able to say in this case that there is any preponderance of the evidence against the findings of the referee as to this amount.
The,last contention — that the referee did not find upon all the issues — is not tenable, for the reason that his findings seem to be very full, and substantially cover all the grounds involved in the controversy.
It is claimed on the part of the county, in its appeal, that the court erred in reducing the finding of the referee as to the amount of partial payments on personal property taxes received during the treasurer’s first term of office from $1,090.70 to $631. But, as we have before indicated, the $631 was the only amount which the treasurer accounted for in his settlements with the county after entering upon his second term, and we are of the opinion that the court below properly held that the sureties upon his official bond for the second term could not be held for a sum exceeding the amount so accounted for by the treasurer.
It is further contended on the part of the county that the referee erred in giving the sureties credit for $200.12, which they claimed was never in fact received by Tunley from his predecessor. We are of the opinion that the county is right in its contention. It clearly appears from the evidence that Tunley, in his reports to the board during the four years he held the
Another question that may arise upon a new trial of this case, and that may now properly be decided, is, were the sureties entitled to be credited with the sum of §116, claimed to have been overpaid by the treasurer to Custer City and other school districts? It is not claimed that the county received any benefit from these overpayments, and we fail to see upon what principle the county could bo hold to sustain the loss. We are of the opinion, therefore, that the referee erred in crediting the sureties with these overpayments. The judgment of the court t below is reversed, and a new trial ordered.