59 Neb. 483 | Neb. | 1899
The state of Nebraska brought this action in the district court of Douglas county to recover from the Omaha
The controversy arises out of the following facts: The defendant bank was a state depository, and as such had in its custody on'January 2, 1897, state funds amounting to more than $200,000. The legislature of 1895 passed an appropriation bill, entitled' “An act making appropriation for current expenses of the state government for the years ending March 31, 1896, and March 31, 1897, and to pay the miscellaneous items of indebtedness owing by the state of Nebraska.” See Session Laws, 1895, p. 386, ch. 88. Among the items of appropriation contained in the first section of the act is the following: “For state sinking fund, one hundred eighty thousand and one hundred and one and seventy-five one-hundredths ($180,101.75) dollars, to reimburse said fund for same amount tied up in Capital National Bank.” The bill was approved by the governor April 10, 1895, and the same day J. S. Bartley, the state treasurer, filed with the auditor of public accounts a claim for the entire sum appropriated to-reimburse the sinking fund. This account having been examined and adjusted by the auditor and approved by the secretary of state, a warrant 'in the following form was made out and delivered to the claimant:
“$180,101.75. State of Nebraska. No. 95241.
“Office of Auditor of Public Accounts,
“Lincoln, Neb., Apr. 10,1895.
“Treasurer of Nebraska,
“Pay to J. S. Bartley or order one hundred eighty thousand one hundred one and 75-100 dollars, for to reim*488 burse state sinking fund, in accordance with legislative appropriation approved Apr. 10, 1895, and charge general fund.
“Countersigned: Eugene Moore,
“J. S. Bartley, Auditor of Public Accounts.
“Stale Treasurer. P. O. Hedlund, Deputy.
“- — , Deputy.”
On left hand margin: “Treasury Warrant.”
Upon the back of this warrant appears the following indorsements: “Presented and not paid for want , of funds, and registered for payment Apr. 10, 1895. Number 27932. J. S. Bartley, State Treasurer, Lincoln, Nebraska.” This further indorsement appears: “J. S.. Bartley. J. H. Millard, Pt.”
This warrant, it is asserted by the defendants, was sold by Bartley to the Chemical National Bank of New York. The state does not deny the assertion, but, on the contrary, by implication, concedes its truth. At any rate, it is certain that the New York bank, claiming to be the owner of the instrument, forwarded it for collection to the defendant bank in October or November, 1896. On January 2, 1897, Bartley called at the Omaha National 'Bank, and, for the purpose of paying the warrant, drew his check, as treasurer, upon the funds of the state on deposit in said bank. The amount of the check was $201,884.05; it was made payable “to the order of J. H. Millard, Pt.,” and was delivered to the payee, who thereupon surrendered the warrant to Bartley, and caused the state’s money, to the amount of the check, to be turned over to the Chemical National Bank of New York and the Exchange Bank of Atkinson. These are the salient facts, and we proceed now to inquire whether they show a right of recovery, in the state. Whether the appropriation to reimburse the sinking fund was legislation fairly embraced within the title of the act may well be doubted; but we pass that question by, as its determination is not necessary to a decision of the case. The warrant under consideration was issued to reimburse the sinking fund
We come now to the question of conversion. The substance of the transaction between the defendants and Bartley at the Omaha National Bank of January 2,1897, was, according to the doctrine of the last mentioned case,
But it is said by counsel for defendants that the Omaha National Bank was a state depository, and that there can be no liability, because it was the duty of the bank to pay out the state’s money on checks signed by Bartley in his official character. This is true. It is conceded that the custodian of a trust fund is not liable for the loss of money disbursed by him in good faith on the trustee’s order; but what relevancy has that proposition to the case before us? It is not sought here to charge the defendant bank with any wrongful conduct in connection Avith its office of custodian of public moneys. No violation of duty in that respect is alleged against it. The unlawful act upon which this suit is grounded is not the payment of the money on Bartley’s check, but the receiving of it by the defendants for the use and benefit of the Chemical National Bank. When the Omaha bank, acting as a collecting agent, received the state’s money and turned it over to its principal, it did an act which, according to the overwhelming weight of authority, amounted to a conversion.
Since the foregoing opinion was prepared there has been presented to us an additional brief on behalf of defendants challenging the sufficiency of the petition in error. Without any intimation that counsel had other arrows in his quiver, he was given leave to file a supplemental brief, after the cause was submitted, but was informed at the time that the court would not feel bound to consider it. Neither in the original brief nor in the elaborate oral argument was there any allusion to an alleged defect in the petition in error. And yet, if it be true that the pleading is so lacking in essential averments as to preclude an adjudication on the merits, the
The judgment is reversed, and the cause remanded for further proceedings.
Reversed and remanded.
Prior to the submission of this cause to the trial jury the court denied a motion of the plaintiff to dismiss its action, without prejudice. This refusal was assigned as error. I think the point well taken, and for this reason join in the judgment of reversal. I do not concur in the reasons for reversal stated in the opinion.