80 Neb. 754 | Neb. | 1908
Plaintiff, as administrator, brought this action against Hosmer H. Hendee, former county judge, and his official bondsmen, to recover certain funds and the value of a certificate of deposit belonging to plaintiff’s intestate, which, it was alleged, said Hendee had received by virtue of his office as county judge and had converted to his own use. Hendee made default. His bondsmen answered, denying that the fund and certificate were received by Hendee in his official capacity as county judge. The trial court directed a verdict for the defendant bondsmen, and for the plaintiff against the defendant Hendee, and rendered judgment accordingly. ' From that judgment the plaintiff has appealed.
From the record it appears that one Smith died intestate, possessed of a small sum of money and a certificate, of deposit for |3,300. The coroner was called to investigate the cause of his death, but found no occasion for holding an inquest. It appears that Smith had no relatives in that community, and the coroner took possession of the money and certificate, which he found upon the person of the deceased. Tlie coroner then wrote to the county judge asking his advice as to the disposal of the property. In
The appellant urges that Sendee received the money and certificate by virtue of his office as county judge, or, at least, under color of office, and that in either event, upon his failure to account for the property so received, his bondsmen would be liable. Ee further urges that the act of Sendee in procuring the administrator to indorse the certificate was in effect an official act, directing the disposition of the estate of a decedent which was being administered in the county court. Appellant grounds his contention upon the theory that the county court has exclusive jurisdiction of probate matters, and the county judge is the only person who 1 any authority to order or direct the disposition of the personal property of decedents, and
The condition in the bond which is particularly relied upon for a recovery in this case, and which, we think, is the only one under which the bondsmen could be held under any circumstances, is in the following language: “Now, if the said Hosmer H. Hendee * * * shall promptly pay over to the person or officer entitled thereto, all money which may come into his hands by virtue of his said office,” etc. It is a rule universally recognized that sureties on official bonds can only be held for such liability as comes within the letter of their contracts. The bond in this case holds the sureties only for acts done by virtue of office, and not under color of office, and they are not liable in this case, unless it can be said that Hendee received the money and certificate of deposit by virtue of his office. Under no circumstances that we can conceive of is the county judge entitled to the custody of the personal effects of a decedent prior to the appointment of an administrator. The record clearly discloses in this case that Hendee obtained possession of the money and the certificate prior to the application for the appointment of the administrator. Under no circumstances could he have had any jurisdiction as county judge to compel or require .the property to be placed in his hands. He had obtained possession of the money and certificate by misrepresentation of the law to the coroner, and, while' this act may have been under color of his office, yet it was not by virtue of his office.
Some complaint is made that the court directed a verdict, instead of submitting the facts to a jury for its determination; but this is not strenuously urged, nor do Ave see how it could be, because the verdict directed was the only one that could be sustained. The facts were not in dispute, and there was no question of fact to submit to the jury, and the court directed a verdict as a matter of law, because the sureties were not liable.
It follows .that the judgment of the district court is right, and should be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
, . . Affirmed.