39 Iowa 564 | Iowa | 1874
The District Court, on the trial, made the following findings of facts and conclusions of law:
1. “The defendant, Angus McDonald, was treasurer of plaintiff from March 20th, 1871, to March 20th, 1872, and again, on re-appointment, from April 1st, 1872, to January 4th, 1873, and gave the bond in suit, signed by defendants, Meyers, Tilton, and Bosley, as his sureties on'his qualification for his last term.
2. During both of said terms, as he received money of the district, he did not keep it separate, but put it with his own private funds, and used it in' éonnection with his business; and as orders were presented he paid them out "of any money he had on hand.
3. April 1st, 1872, the Board of Directors had a committee of three members examine his accounts for the preceding year, .and made settlement with him, and found a balance in his hands of §388.31. There was no money produced, nor demand made therefor, and he had no.money actually on hand at the time. It does not appear that he failed to pay any order .drawn upon him during this first term. This balance of §388.31 was carried over and charged to him on his account for . the new term. . . ■
4. On his resignation,. January 4th, 1873, on settlement with him it was found that -there was a balance in his hands, including in the account the §388.31, of $661.83; and this sum he has wholly failed to pay over to his successor in office, or any officer or person entitled thereto.
5. He received, during the first term, $3199.08
and paid out, . . . . . . . 2810;77
$388.31
During the second term, . . $1968.32
and paid out....... 1694.70-
$273.62
6.In neither of the settlements was there anything claimed by him, or allowed by the “board, as compensation for his services. A reasonable compensation, if he had not had
7.. April 4th, 1873, these defendants (the sureties) made an offer to allow plaintiff to take judgment against them on said-bond for $265.00. Plaintiff refused to accept the- offer.
8. At the last term of this court judgment by default was rendered in this case against said McDonald,, and his surety, Meyers, for $661.83, and interest thereon at 6 per cent from-January 4th, 1873.”
CONCLUSIONS ON LAW.
“ I.. As, the money of the district during each term was-used by the treasurer, and not kept separate, and payments of orders during the second term were no more made on account of the money received during that term, than on account of the balance remaining in the treasurer’s hands at the commencement of said term, the district ha'd the right to elect to' consider so much of the money paid during the last term as being paid on account of such balance as was necessary to satisfy the same; and, therefore, the whole deficit is chargeable to the account of the second term, and the sureties bn the bond for that term are liable therefor.
II., The failure to pay over all balances of money remaining' in his hands at the termination of his office, to his successor in office, or to the persons entitled thereto, was a breach of the conditions of said bond.
III. These defendants are, not entitled to any deduction by way of compensation to their principal.1”
Judgment was accordingly rendered against the defendants for the entire deficit with interest and costs.
In The County of Mahaska v. Ingalls, 16 Iowa, 81, which was an action on the official bond of the county treasurer, it was held that sureties on official bonds are not liable for prior delinquencies of their principal. The court there says: “ This action was against the sureties of the ‘ new or additional bond ’ of the deceased county treasurer. The bond was not retrospective in its terms.* Consequently, while the sureties would be bound for the public moneys in the hands of their
In The United States v. Linn, supra, the same doctrine is re-affirmed, holding that a count which avers that an accounting officer received public moneys during his continuance in office is not good as against a surety who became such some time after he entered on his office, there being no allegation that the money received before the surety became such were in the hands of the officer at the time the defendant became surety, and were not accounted for afterwards. So also in The United States v. Boyd, 15 Pet., 208, the decision is to the same effect. Bessinger v. Dickerson, 20 Iowa, 260; Warren Co. v. Ward, 21 Ib., 85; and Thompson v. Dickerson, 22 Iowa, 360, hold the some doctrine.
In this case the court expressly finds that, at the time the committee settled with the treasurer in respect to his receipts and disbursements during his first term of office, the treasurer had no money on hand at the time. It appears by the court’s' findings that the treasurer mixed the money of the district with his own, paid orders as they were presented from any money he had on hand, and that, when the settlement was had with him on the first day of April, 1872, “he had no money actually on hand,” either of his own or belonging to the district. lie converted the money to his own use, and had none on hand when these defendants became sureties on the bond for the second term of office. For this default and dereliction these defendants are not liable.
The'undertaking of the' sureties is, in effect, to be responsible for all the moneys received by their principal during his term of office, and not for those received by him prior thereto, and not in his hands when they became sureties. Now we have seen that at the expiration of his first term it was found that he had received of the public moneys $388.31'more than he had paid out, and that he had none of this amount on
If the plaintiff will remit the amount of the delinquency existing under the treasurer’s first term of office, to:wit: $388.31, and take judgment for the amount of the deficit found at the close of the second year, to-wit: $273.62, with interest from January 4th, 1873, the judgment will be affirmed. Otherwise it will be
' Reversed.-