10 Kan. 238 | Kan. | 1872
The opinion of the court was delivered by
The defendant in error was treasurer of School District No. 54 in Crawford county. The • school district issued bonds to the amount of $600, and the defendant in error negotiated the bonds with a banking-house in Fort Scott and took a certificate of deposit for the amount for which they were sold. Afterwards he drew a check on the banking-house for the amount and sold the same to one F.. Playter. This check was dishonored; whereupon Playter' brought an action against the' defendant in error for the amount, and recovered judgment therefor. This judgment was recovered on the 15th of January 1872; and on the next day defendant in error filed his petition against the plaintiff in error, and on the same day an answer was filed and a trial had resulting in a judgment against the plaintiff in error for $564.91. Two errors are alleged. One is, that no answer was filed by the district. The answer is informal; it purports to be by the clerk and director of the district instead of by
, —Upon receiving and filing the mandate, and entering the
*243 “That the certificate of deposit taken by him from said Van Fossen & Britton, bankers, in the name of School District No. 54 for said $480, was so taken pursuant to the order and instruction of the school board of said district.” “That plaintiff, as treasurer as aforesaid, paid said sum of $480 so received from said Playter to the building contractors previously employed by said district to’ erect a school-house for the use and benefit of said district upon the written order of the director and clerk of said district.” “Plaintiff further says that he has not received said $480, nor can he recover of said Van Fossen & Britton said sum of money, or any part thereof.” “ Plaintiff further states that on the 2d day of February 1872 he paid off and fully discharged and satisfied said judgment of Playter’s aforesaid out of his own private funds, and that said defendant has wholly neglected and refused to pay plaintiff the amount of said judgment or any part thereof.”
To the amended petition the School District demurred, assigning, 1st, that said petition did not state facts sufficient to constitute a cause of action, and 2d that the court had no jurisdiction of the subject of the action. Upon this issue the case was heard at the May Term 1873 of the district court. The court ovei’ruled the demurrer; and from such decision and order the School District appealed, and brought the case here on error, where it was heard and decided at the July Term 1873 of this court.
The opinion of the court was delivered by
The petition in the court below shows substantially that school district bonds of school district No. 54, Crawford county, were regularly voted and issued, and that the plaintiff, who was treasurer of said district, and ■ex officio one of the school board of said district, in pursuance of authority given to him by said board, negotiated said bonds at eighty cents on the dollar, receiving therefor the sum of $480, and that he deposited said sum with Van Fossen & Britton, bankers, at Fort Scott, Kansas, “ and took a certificate of deposit therefor from said bankers, he being instructed so to do by said board, which certificate of deposit was drawn in favor of said district;” that in eight days thereafter, to-wit, June 3d 1871, at about 3 o’clock p. m., said bankers failed and have since been and are now wholly insolvent; that on said June 3d, about 4 or 5 o’clock p. si., the plaintiff, as treasurer of said district, and in pursuance of instructions from said board, drew a check on said bankers in favor of Frank Playter for said money, and in consideration therefor received from said Playter $480; that plaintiff paid this money to the school-house building contractors on the written order of the director and clerk of the district; that said check was dishonored, and that Playter then sued the plaintiff thereon and recovered a judgment against the plaintiff for $480 principal, $31.60 damages, $27.01 interest, and $26.30 as costs; that plaintiff afterwards paid said judgment. The prayer of said petition is that judgment shall be rendered against, the district and in favor of the plaintiff for $564.91, and interest and costs. And to this petition the defendant filed a demurrer.
We suppose the sole question intended to be raised in this court is, whether the petition below states facts sufficient to constitute a cause of action; and involved in that question is
The judgment of the court below is reversed, and cause remanded with the order that said demurrer be sustained, and for such further proceedings as shall be proper in the case.