20 Kan. 329 | Kan. | 1878
The opinion of the court was delivered by
This was an action against the sureties on the official bond of U. B. Warren, late treasurer of Chase county. Judgment was rendered in the court below in favor of the plaintiff and against the defendants for $613, and costs, and the defendants now as plaintiffs in error bring the case to this court. Plaintiffs in error raise two principal questions in this court. First, they claim that the finding and judgment of the court below are not sustained by sufficient evidence; and second, they claim that the court below erred in excluding certain evidence. We shall consider these questions in their order.
I. We think the finding and judgment of the court below are amply sustained by sufficient evidence. Everything necessary to enable the plaintiff to recover, except merely the alleged breach of said bond, was admitted by the parties.
It will also be presumed from the facts in this case that Warren converted the money, for which this suit is brought, to his own use, as soon as he received it. The law requires that a county “treasurer shall keep a just and true account
There was a great deal of other evidence introduced in this case tending to prove the plaintiff’s case, but we have not thought it necessary to state it.
The plaintiffs introduced two of the administrators of the estate of said Warren, as witnesses, to prove that they did not receive said money; but both parties failed to introduce as a witness one Mrs. Margaret Kellogg, who had been previously appointed as an administratrix, to act in connection with one F. B. Hunt, administrator, in settling said estate. The defendants therefore now claim that the plaintiff failed to make out a case because, as they say, Mrs. Kellogg might have received said money. Now there was not the slightest evidence introduced tending to show that Mrs. Kellogg ever received any money or property belonging to the county treasurer’s office. And it will not be presumed that she did. She had no right to receive any such money or property, or even to meddle in any manner with the county treasurer’s office. The funds in the county treasurer’s office belong to the office, and not to the administrator of the estate of the deceased treasurer. The treasurer himself, before his death, did not own such funds in his individual capacity, and had no right to use them in any manner except as provided by law. In the absence of evidence it will be presumed that Mrs. Kellogg did not meddle with the county treasurer’s office. And therefore it was unnecessary to introduce her as a witness.
II. We shall now proceed to consider the second question raised' by the defendants below. The money sued for in this action was money deposited by the Atchison, Topeka & Santa Fé Railroad Company with said U. B. Warren, treasurer of
“State what, if any, fund or funds the parties paying this .sum of money to you told you it belonged to ? ”
“State, at the time this money was paid to you, what if anything was said to you by the person or persons so paying it, in reference to this money?”
Both of these questions were objected to by the plaintiff below, on the grounds that the evidence they called for was ■“incompetent, irrelevant-and immaterial; ” and the objections were sustained, and the evidence excluded. It was afterward shown that this money was received from F. B. Hunt, the first administrator of the estate of said Warren; that Howard did not know to what fund or funds it belonged; and in answer to a question as to whether he knew of his own knowledge to what fund this money belonged, he stated that he “could never find out,” but thought it was “not condemnation money.” He apportioned it, as we have already stated, to the various county, township, and school-district funds. Hunt was also introduced as a witness, and testified that he paid said money to Howard; but he did not state whether he knew to what fund or funds it belonged, or not. We think the court below erred in sustaining said objection, and in excluding said evidence; but we do not think that the error was material or substantial under all the circumstances of this case. It was error to exclude said evidence, because, as we think, it was a legitimate subject of cross-examination. Howard had already testified, on his direct examination, that
The doctrine of application of payments, as between debtor and creditor, probably has no application to this case. But as to such doctrine, see Shellabarger v. Binns, 18 Kas. 345.
We decide this case upon the theory that the sureties of Warren, as treasurer, were in effect insurers, as to the safekeeping, in the proper place, of all moneys intrusted to him as treasurer, until his death, and that then they ceased to be such insurers. And therefore, if Warren, as treasurer, did not have said condemnation money when he died, the sureties are liable; but if he did have it at that time, then they are not liable. Now as he did not have it at that time we must hold that the sureties are liable.
The judgment of the court below will be affirmed.