13 Neb. 103 | Neb. | 1882
The controlling question in this case is presented as well by the instructions given in charge to the jury and those prayed by the defendants and refused, as by testimony offered by the defendants at the trial and excluded by the court.
The fourth instruction given at the request of the plaintiff below is as follows: “The jury are instructed that the several official statements made by the said defendant Van Siclcel to the board of county commissioners of Buffalo county, of the amount of money on hand at the several dates thereof are binding and conclusive on all the defendants who signed and executed said bond. That said defendants are estopped from denying, impeaching, or contradicting the same; that the jury must find a verdict against said defendants for the amount appearing in said statements to have been in defendant Van SickePs hands as treasurer, at the close of his term of office, which was not •accounted fox’, and paid over to his successor ixx office, axxd in ascertaining said amount they nxxxst have recoux’se alone to the said official statements.”
Van Sickel was elected county treasurer of Buffalo county for three consecutive tex’nxs, for each of which he gave bond. The bond upon which this sxxit was broixght was his third and last. It beax*s date Jaxxuary 14, and was appxwed and
Upon the trial there was introduced and read as testimony on the part of the plaintiff a paper entitled, “ Statement of county treasurer of funds collected and disbursed up to and including January 19, 1878.” It is also endorsed as follows: “Examined and found correct this tweniy-third day of January, 1878,” signed by two of the county commissioners and attested by the county clerk. This paper contains a statement of the condition of the various funds in the county treasury on the first day of October, 1877, and of the receipts and disbursements of such fund up to January 19, 1878. Also a resume or summary of cash balance in the treasury, showing a total of $12,567.18, signed “ J. Van Sickel,” without date:
There was also introduced in evidence on the part of the
The defendants below (the sureties) by their answer in several and various forms denied that the said Van Sickel made any default during the term for which they were sureties, alleged that said Van Sickel duly accounted for and paid over all the county funds which came into his hands for and during the term covered by the bond on which they were sureties, and that the said Van Sickel was a defaulter to the amount of twelve thousand five hundred sixty-seven dollars and eighteen cents at the close of his second term of office, and when he entered upon his third term and the giving of the said bond, etc.
But the whole question may be considered as turning upon the instruction above set out. Are the official statements or any statements made by the defendant Van Sickel to the county commissioners of the amount of county money in Lis hands at the several dates thereof binding and conclusive on all the defendants who executed said bond?
I do not doubt that it is within the power of the legislature to enact a law making it the duty of county treasurers to make official statements, and to make such statements conclusive evidence of the facts therein contained. But so far as I have been able to ascertain, no such statute has been passed, or had not at the date of the transactions here under consideration. I have not examined the revenue law of 1879. The only statute cited by the defendant in error as bearing on this point, and it doubtless was the only one then in force, is that found on page 925 General Statutes, section 77, which is as follows: “The county treasurer shall settle with the county commissioners on or before the first Monday of May, and on the first Monday of October. Provided, however, That the county commissioners may require the county treasurer to settle with them at any time. The treasurer is to be charged with the amount of all tax lists placed in his hands for collection, and credited with the amounts collected thereon and the delinquent lists; he shall leave his vouchers with the commissioners, to be retained by them for evidence of his settlement. If the treasurer’s accounts are correct, the commissioners shall certify the same; if not, he shall be liable on his bonds.”
I quote section 42, p. 239, Gen. Stats., as having a bearing on this subject: “The county clerk shall keep a distinct account with the treasurer of the county for each sev
I think that a proper consideration of these two sections must lead to the conclusion that the measure of the accountability of the county treasurer, nor of his bondsmen, depends in the. least degree upon any statement of such treasurer, official or otherwise. Indeed, he is nowhere required to make any statement, nor do I find any authority for dignifying any voluntary statement of his as official. The first of the above-quoted sections requires the county treasurers to settle with the county commissioners twice in each year, and whenever the county commissioners may require, and it points out what such settlements shall be upon —the tax list, the delinquent list, and the treasurer’s vouchers. No statement pf the treasurer is given any standing, official or otherwise, in these settlements. True, the law speaks of the treasurer’s accounts. But it clearly refers to the actual state of his account. “If the treasurer’s accounts are correct the commissioners shall certify the same; if not, he shall be liable on his bonds.” Does this mean that if the treasurer makes out and presents a statement showing a certain balance in his hands, whether he has the funds to balance it or not, the county commissioners shall certify the account as correct, and he shall not be held on his bonds (or his bondsmen shall not be held), but if he has not filled out a blank statement correctly his bondsmen shall be held? I think not. But that it means
But the statute nowhere makes these settlements conclusive. Nor do I think that it would be safe to do so. I know that in some cases, under somewhat different statutes, courts have held that treasurers, as well as their bondsmen, are estopped to deny the correctness of statements or reports made by treasurers to settling or auditing boards, etc. But it is of the essence of an estoppel that it be mutual. If the county treasurer and his bondsmen are es-topped — in the language of the instruction — “from denying, impeaching, or contradicting” the correctness of such settlement, then the public authorities, present and future, are equally estopped. Would not the establishment of such a rule expose the public to great loss from the hasty, not always well-advised action of these boards, to say nothing of the premium it would offer to the crafty and unscrupulous, if it be true that such ever successfully aspire to official position ?
Taking the two sections together, the law provides for keeping the accounts of the treasurer so that about all that the county commissioners have to do in these settlements, as it appears to me, is to examine the treasurer’s vouchers and count the money on hand, and this is, or used to be, the all but universal custom.
While my examination of this case has brought me to the conclusion above indicated, it is not to be denied that there is an irreconcilable conflict of authority in the cases applicable to it, many cases holding that both principal and securities on an official bond are estopped to deny the statements, settlements, or books of the principal showing money in his hands at any specified time. But these cases, all of
Before the commencement of the trial the plaintiff notified Francis Preston, one of the bondsmen, to produce the original deed at the trial, and offered, if necessary, to postpone the trial to enable him to produce it. The original deed not being produced, the plaintiff offered in evidence a copy from the record certified by the clerk of the hustings coiu’t, where the same was recorded, and also proved that the original deed was, about eight months before the trial, delivered by the clerk of said court to the said Francis Preston; and proved by the oath of said clerk that the same was a correct copy, and that the trustees under the said deed, and one of the defendants, had acted under the said deed, by authorizing and effecting sales of property therein specified, etc., whereupon the said copy was excluded from going in evidence to the jury. The plaintiff offered and gave in evidence the several reports made by the said John Preston to the two houses of the legislature, from the-day of January, 1809, to the thirteenth day of January, 1819, inclusive, and the annual reports of the joint committees of both houses of the assembly, from the said-day of January, 1809, to the said thirteenth day of January, 1819, exclusive; and the books of the treasury department, during the whole period during which John Preston was treasurer of the commonwealth, by virtue of his successive annual elections aforesaid. And according to said annual reports and the said books of the treasury department, it appeared that on first of October, 1818 (being the end of that fiscal year’),
The defendants proved the receipt by the said John Preston on. the seventeenth day of August, 1818, from the United States of the said sum of $146,500, “which sum * * * was passed bv the said John Preston on the same day to the credit of the commonwealth, on the books of the treasury department, but the said John Preston on the same day did not deposit the same at the bank to his credit as treasurer, on official account, but did deposit the same to his own individual credit at the Bank of Virginia on his individual private account, blending the same with his private funds at his credit at said bank,” etc.
' Under the rulings and instructions of the court the jury found in favor of the sureties, and only one cent damages against Preston himself.
Under the practice of that early day a special court of appeals was summoned to try the case on error. Judge Roane delivered the opinion of the court, and after finding error in the action of the general court in excluding the copy of the deed from the jury as evidence that the bondsmen had received the conveyance of property and accepted the same as an indemnity against loss by reason of the defalcation then in suit, and deciding to' grant a new trial on account of such error, he proceeds to discuss the other question, and laid down the law as hereinbefore stated.
The Indiana and Illinois cases cited by counsel for defendant in error, but follow Baker v. Preston, supra.
On the other hand, in the case of Inhabitants of Rochester v. Randall, 105 Mass., 295, the supreme court, of Massachusetts held (I quote syllabus): “ The same person was chosen treasurer of a town five consecutive years. ' In the first four he served without a bond, and in the fifth he gave a bond conditioned that whereas he had been chosen to the office for that year, if he should well and faithfully perform all of the duties of his said office, the bond should be void. Held, That the sureties were not liable for his appropriation to his own use during the first year of money of the town which he falsely credited himself in his account of that year as having been
I also quote from the opinion: “But it is obvious that the misappropriation of the money was complete in 1862, and that if the town had taken a bond for that year the defalcation would have been covered by it. There is no evidence that the specific money remained in his hands after the close of that year. He did not account for it in 1863, and was not required to do so. The same is true as to the next two years. The town has always objected to the entry in his account, which implies that it was known to them; but its claim to the money has not been enforced prior to his procurement of securities in 1866. But the cause of action against him arose in 1862 when he rendered his account, and the town is entitled to recover interest against him from the time of the misappropriation. We cannot regard the defendants’ bond as- applying to it.”
This case, although it does not mention, in effect overrules Sandwich v. Fish and others, 2 Gray, 298, cited by counsel of defendants in error, in which the same court held that, “where a town yearly for four successive years charges a collector of taxes in account with the amount of taxes entrusted to him for collection, and with the balance of the previous year’s account, and credits him with the money received from him, and with the balance carried to the next year’s account, and no other appropriation of the sums paid by him is made by either party, they will be applied to the extinguishment of the earliest charges and the balance of each year’s account except the last; being thus extinguished the town may recover the final balance of him and his sureties in an action on his bond for the fourth year.”
The old supreme court of the state of New York certainly did not regal’d a settlement between a county treasurer and the county board as being beyond the reach of reinvestigation. The case of Supervisors of Chenango v.
The case of Bissell v. Saxton, 66 N. Y., 557, decided by the present court of appeals, is squarely with the plaintiffs in error. I quote from the syllabus: “The sureties upon the bond of a public officer are liable thereon only for the defaults .of their principal committed after the commencement of the term of office for which they became his sureties. Although their principal held the office for a preceding term, they are not liable for a defalcation which then occurred. In such case, those who were sureties for the officer for the prior term must be looked to. In an action upon a bond of an officer his official reports are not conclusive as against his sureties, but mere admissions of the principal, subject to explanation.” The judgment, which was for the plaintiff, was reversed.
The case of Supervisors of Jefferson County v. Jones et al., 19 Wis., 51, cited by counsel for plaintiffs in error, came
The case of Vivian, Treasurer, etc., v. Otis and others, 24 Wis., 518, also cited by counsel for plaintiffs in error, is quite in point. Otis was clerk of the board of supervisors, an office answering pretty much to our county clerk. Under their system this officer has the custody of certain public moneys, called redemption money, for which he is required to give bond. Otis was elected his own successor. He gave a bond for each term, an entirely different set of securities going on his last one. At the close of his second
On the part of the county it is claimed that under the circumstances the sureties on the second bond are liable for this entire amount; that as the law required the clerk to pay over to his successor in office all redemption money in his hands, and as he was his own successor, to whom he was to pay over, the sureties on the second bond became responsible for his receiving from himself the accumulated receipts of the former term and for his having in his possession the amount by him reported as in his hands, as well as for the faithful disbursement of that amount during his second term. The court below negatived this view of the liability of the sureties upon the second bond, in effect holding in the various instructions given the jury that the sureties upon that bond were only responsible for the amount of defalcation occurring during the term for which they became surety; that while the settlement made by Otis at the end of his first term showed that he was then owing the county the sum of $3,119.97, yet the sureties might reduce that amount by showing that Otis was a defaulter at that time and had appropriated and converted a portion of that sum to his own use, and that whatever sum he had .thus
The supreme court of Nevada decided the same point in the same way in State v. Rhoades, 6 Nev., 352. This was an action on the second bond of a deceased state treasurer, who had been elected his own successor. I quote from the syllabus: “On a trial against the sureties on the official bond of a state treasurer to recover for defalcation claimed to have taken place within the period covered by the instrument, it is competent for the defendant to show that the defalcation occurred previous to the giving of the bond,
The Iowa, Michigan, Missouri, New Jersey, and United States circuit court cases cited by counsel for plaintiffs in error, as well as the late case of Thomas v. Blake, 126 Mass. R., 320, and many cases in the supreme court of the United States; Miller v. Stewart, 9 Wheat., 680; Farrar v. U S., 5 Pet., 373; U. S. v. Boyd, 15 Pet., 187; U. S. v. Linn, 1 How., 104; and Bruce v. U. S., 17 How., 437, all hold the same way.
I close the citation of authorities by quoting from a recent text-book: “The general rule, that the liability of ..a surety is measured by the terms of his contract, applies in its full force to contracts of suretyship entered into in the form of official bonds. It is a clear proposition on principle and authority that the sureties on the bond of a public officer, are liable only for defaults committed by him after the commencement of the term of office for which they become his sureties, and that if it should so happen that the same individual had previously held the same office under a .prior appointment, and had committed defaults during the term of that appointment, those who were his sureties on such prior appointment must be looked to for such defaults, and not those who signed his bond on his re-appointment. Their engagement is for his future, and not his past conduct; and it would be a gross imposition upon them, in the absence of a special stipulation to that
In the case at bar, the date of Van Sickels defalcation is the central fact upon which the liability of the plaintiffs in error turns. Why could it not be proved the same as any other fact ? Under the law as it now stands here, and in all the code states, no witness is excluded on account of his interest in the result of the trial. But were this not so, Van Sickel had no legal interest in the result. He had suffered default, and in any event judgment must go against him. He had not been convicted, or even indicted, so far as we know, for the embezzlement of this money. There Avas then no legal objection to the testimony, ortojdie person offered as a witness.
I therefore reach the conclusion that in giving the instruction set out at the commencement of this opinion and others of like tenor, as Avell as in refusing to give instruction No. 1, as prayed by counsel for plaintiffs in error; also, in refusing to alloAV plaintiffs in error to prove, on the trial, that tire defalcation of Van Sickel, for which they were sued, was committed within a prior term, and before they became his sureties, the district court erred.
There are other and technical reasons why the said judgment cannot stand. The principal defendant, Van Sickel, made default; his default was entered, but no judgment is rendered against him. In any event, the sureties have a right to insist that judgment shall go against their principal, if living, as soon as it goes against them.
Again, Lewis H. Cramer and Charles Yoder seem to have been dropped out of the case without any explanation, probably by mistake of the clerk of the district court, and a general judgment is rendered against George Meisner as administrator of Casper Meisner, deceased.
The judgment of the district court is reversed, and the
Reversed and remanded.