80 P.2d 1095 | Kan. | 1938
The opinion of the court was delivered by
This is an original proceeding in quo warranto, authorized by G. S. 1935, 60-1609 et seq., begun in April, 1937, to oust defendant from the office of clerk of the district court of Finney county on the alleged grounds of her willful misconduct in office and of her acts constituting violations of criminal statutes involving moral turpitude. This procedure is civil in its nature, rather than criminal. (State, ex rel., v. Duncan, 134 Kan. 85, 4 P. 2d 443.) After issues were joined the court appointed Hon. W. PI. Russell, of La Crosse, as its commissioner to hear the evidence and to make findings of fact and conclusions of law and report to the*court. This he
Pending the hearing of this report and the motions thereon, plaintiff filed an amended and supplemental petition in which defendant was charged with additional willful misconduct within her present term of office, and upon plaintiff’s motion and showing under G. S. 1935, 60-1616, an order was made suspending defendant from performing any of the duties of the office pending the final hearing and determination of the case. The court rereferred the matter to its commissioner to hear further evidence upon the amended and supplemental petition and to make further findings of fact and conclusions of law. This has been done. In his report our commissioner found the facts substantially as alleged by plaintiff, and has recommended that defendant be ousted from office. Plaintiff has moved that the report of the commissioner be approved and his recommendation of removal of defendant from office be followed. Defendant has filed exceptions to the findings and conclusions of our commissioner and has moved for judgment for defendant. The matter has been briefed and argued.
In an original proceeding in this court the findings and conclusions of our commissioner are advisory only. (State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5.) It is the duty of this court to examine the record and to find the facts and to reach its own conclusions of law. This we have done, and we agree with the findings of fact made by our commissioner, except as to defendant’s acts or knowledge of the forgery of certain checks and receipts, which will be mentioned. We agree also with his conclusions of law, and differ with him, if at all, on the application of one of these to the facts as here presented.
For brevity, we summarize the facts shown by the record as follows: Defendant has lived in Finney county most of the time since 1879, and since she was 17 years of age has been employed in some
A similar audit was made in January, 1937, covering the year 1936. At that time the cash in her office balanced, but the evidence discloses that this balance was brought about in this way: As a result of the sale, in 1931, of real property in a partition action there had been deposited in the office of the clerk of the district court the sum of $105.95 to the credit of one Harrison Thornton, a defendant in the partition action, and the sum of $953.96 to the credit of one
In January, 1937, the books of defendant’s office were again audited and found to be in balance, with the aid of the two checks above mentioned, and it was thought the endorsements of the names of the payees on the checks and the signatures to the receipts were forgeries. The county commissioners called defendant to their meeting in February, 1937, and the matter was discussed. Defendant at that time stated that there were two checks in her office that had been forged. The chairman of the board of county commissioners told her she would have to make the checks good. She said she could not do that immediately. She-was asked to resign. She said if she resigned her office she had no way of making the checks good. She made no direct statement as to whether she would make the checks good or not.
In August, 1937, the administrator of the estate of Columbus Robbins sued the defendant and the surety on her bond for the $953.96 which was payable to him in the old partition action. She filed a demurrer to that petition. This never was ruled upon. On January 8, 1938, she and her codefendant entered into a stipulation with the plaintiff by which it was agreed that if defendant would pay to plaintiff the sum of $700 on or before February 1, 1938, the action would be dismissed with prejudice at the cost of defendant. On January 20, 1938, the sum of $700 having been paid in accordance with the stipulation, an order was made dismissing the action with prejudice, with a judgment for costs ágainst the defendant. This order and judgment was embodied in a journal entry, approved by the attorneys for plaintiff and defendant, and signed by the trial judge. On the same day this defendant entered this journal entry upon the permanent journals of the court in shorthand characters. She took the page out of the judge’s trial docket, placed it with the journal entry which had been approved by the court, and with the papers in the case, and instead of placing them in the usual court
There is no contention that the two checks above mentioned were actually delivered to the persons entitled to them. It is conceded the endorsements thereon were forged, also that the names of the respective payees on the receipts given for the checks were forged. Defendant has made no effort to locate, much less to recover from, the persons to whom she said she made those checks and to whom she said she paid the money on them. There is nothing in this record to corroborate her in her testimony that she ever paid any of the money back, or that anyone called at her office in October, or in December, 1936, and asked for the sum due him in the old partition action.
It seems more reasonable, in view of all the circumstances disclosed by the evidence, to believe that all of defendant’s testimony respecting persons calling for payments of their respective shares in the old partition case and of her cashing the checks with money which she had in the office was fabricated, and that what was done by her in that connection was for the purpose of covering up the shortage discovered by the auditor in January, 1936, and admitted to him by defendant. It is true the handwriting expert called as a witness by plaintiff was unable to state definitely that defendant had actually written the forged names on the back of the checks and on the receipts. But we do not regard that as being essential. There is no intimation that anyone else than defendant had any interest in having that done. It appears when the genuineness of these signatures w-as first called to her attention she conceded they were forgeries. When she was asked to come before the county commissioners in February, 1937, she told them of the two forged checks. She made no denial of responsibility for the sums named in them, but said she could not pay them immediately, and could not do so if she were forced to resign. When sued for the amount by the administrator of the Columbus Robbins estate she filed no answer denying liability, but obviously sought to make the best settlement she could and to get a little more time in which to pay it.
Counsel for defendant stresses the point that the taking of the
The final recommendation of our commissioner that she be ousted from office is approved. It is so ordered.