"(1) That the matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000; that this is a suit in equity, arising under the laws of the United States, and is a case for winding up the affairs of a national banking association.
"(2) That the plaintiff and defendant Fidelity & Deposit Company of Maryland are, and at all times mentioned in the complaint were, corporations of the state of Maryland; that defendant National Surety Company is, and at all said times was, a corporation of the state of New York; and that at all said times said three corporations were doing business in the state of Wyoming as surety insurance companies; that defendant the First National Bank of Cheyenne, Wyo., is a national banking association, and at all said times, and until the 9th day of July, 1924, was engaged in the active conduct of the banking business in Cheyenne, Wyo.
"(3) That Ira L. Hanna is the duly elected, qualified, and acting county treasurer of the county of Laramie, Wyo.; that his immediate predecessor in said office was one John Schuneman, whose term of office expired on or about January 1, 1925; that defendants Fidelity & Deposit Company of Maryland and National Surety Company were and are, respectively, sureties upon two certain official bonds of said John Schuneman as such county treasurer, in the penalty of $25,000 each, which said bonds were conditioned as required by law, true copies of which said bonds are attached as Exhibits A and B, respectively, to the answer of the defendants Fidelity & Deposit Company of Maryland and National Surety Company herein, which said copies are made a part hereof.
"(4) That at all times in the complaint mentioned, defendant the First National Bank of Cheyenne, Wyo., was a duly designated depository of the public moneys of the county of Laramie in the possession of the county treasurer of said county; that, upon the application of defendant the First National Bank of Cheyenne, Wyo., therefor, the plaintiff on July 13, 1917, as surety for said bank, to secure the payment by said bank of the moneys of said Laramie county deposited therein, made, executed, and delivered to said county a certain depository bond, in the penalty of $25,000, a true copy of which is attached to the answer of defendants Fidelity & Deposit Company of Maryland and National Surety Company as exhibit C, which said copy is made a part hereof.
"(5) That on the 9th day of July, 1924, defendant the First National Bank of Cheyenne, Wyo., was insolvent and closed its doors and ceased to do business; that thereupon the Comptroller of the Currency of the United States took possession thereof, under the provisions of the National Banking Act, and appointed defendant T. E. McClintock receiver thereof; that defendant McClintock duly qualified as such receiver, took possession of said bank and of its books, records, and assets, and ever since has been, and now is, engaged in the liquidation of its affairs.
"(6) That at the time of the closing of said bank there was on deposit therein of the moneys of said county of Laramie to the credit of `John Schuneman, County Treasurer,' the sum of $78,929.73, payment of which was secured by said depository bond of plaintiff, and by $110,000 par value of the bonds of the Kimball County Securities Company, which said bonds were pledged and delivered to said Schuneman, county treasurer of Laramie county, by said bank, for the purpose of securing the deposits of said county in said bank under a certain pledge agreement, a true copy of which, marked `Exhibit D,' is attached to, and made a part of, the answer of defendants Fidelity & Deposit Company of Maryland and National Surety Company, which said copy is made a part hereof.
"(7) That, after the closing of said bank, said Schuneman, as county treasurer, made written demand upon plaintiff for the payment of $25,000 on account of said deposit, because of its obligation so to do under its said depository bond, and that on May 20, 1925, in pursuance of said demand, plaintiff paid to said Schuneman, as such county treasurer, the sum of $25,000 in full satisfaction of its liability under its said depository bond.
"(8) That on the 21st day of May, 1925, said Schuneman, as retiring treasurer of said county, filed with the defendant receiver a proof of claim of said county for the amount of $79,105.24 of the moneys of said county, and that said claim was allowed by said receiver as a general claim in the sum of $53,929.73, but the receiver stands ready to pay dividends on said entire claim in the sum of $78,929.73, less the 25 per cent. dividend already paid on $53,929.73 thereof, on account of the deposit of Laramie county to whomever shall be found to be entitled thereto.
"(9) That on the 3d day of July, 1925, plaintiff filed with defendant McClintock, as receiver of said bank, its verified proof of claim, in the amount of $25,000, a true copy of which, marked `Exhibit A,' is attached to, and made a part of, the complaint; that the defendant receiver refused to allow said claim, or any part thereof, and that no part thereof has been allowed or paid by said bank, by the defendant receiver, or by any other person, or at all.
"(10) That on the 2d day of October, 1925, the defendant receiver, in pursuance of an agreement in writing between plaintiff and said Schuneman, a true copy of which, marked `Exhibit E,' is attached to, and made a part of, the answer of defendants Fidelity & Deposit Company and National Surety Company, paid to said county of Laramie a dividend of 25 per cent. upon $53,929.73, then remaining unpaid, to wit, the sum of $13,482.43, leaving unpaid the sum of $40,447.30.
"(11) That, after the receipt by said county of said dividend, demand was made by the board of county commissioners of said county upon defendants Fidelity & Deposit Company of Maryland and National Surety Company for the payment of said sum of $40,447.30, said commissioners claiming that, in depositing the moneys of said county in said bank in excess of the amount of $25,000, said Schuneman, as county treasurer, had acted in violation of the law, and in breach of the condition of his said two official bonds, upon the ground that said Schuneman failed to have said bonds of the Kimball County Securities Company approved by the board of county commissioners, by reason of which both he and his sureties, defendants Fidelity & Deposit Company and National Surety Company, became indebted to said county of Laramie, in the amount of such excess deposit, to wit, in the sum of $53,929.73, and that said sureties remained so liable for the unpaid balance thereof, to wit, the sum of $40,447.30.
"(12) That on February 3, 1926, defendants Fidelity & Deposit Company of Maryland and National Surety Company paid to said county of Laramie said sum of $40,447.30, together with the additional sum of $1,601.08, as interest thereon, making a total payment of $42,048.38, whereupon, said board of county commissioners and said Ira L. Hanna, as treasurer of said county, in writing released and discharged said defendant companies, their successors and assigns, of and from all claims and demands of said county of Laramie, by virtue of the execution and delivery by said defendant companies of said two official bonds of John Schuneman, as county treasurer of said county, and purported to sell, assign, convey, and quitclaim to said defendants Fidelity & Deposit Company of Maryland and National Surety Company, all the right, title, and interest, if any they had, in and to said claim of $78,929.73 of said county against said bank and said receiver, a true copy of which instrument of release and assignment is attached as Exhibit F to, and made a part of, the answer of defendants Fidelity & Deposit Company of Maryland and National Surety Company, which said copy is made a part hereof, and said John Schuneman, individually and as former treasurer of the county of Laramie, in the state of Wyoming, in writing also purported to sell, assign, transfer, and set over to said defendant surety companies, their successors and assigns, said claim by him filed as such county treasurer with the receiver of said bank, in said sum of $78,929.73, and all his right, title, and interest in and to said bonds of the Kimball County Securities Company, a true copy of which said instrument of assignment is attached as Exhibit G to, and made a part of, the answer of said defendant surety companies, which said copy is made a part hereof.
"(13) That dividends aggregating 45 per cent. have been declared and paid by the defendant receiver to the general creditors of said bank, but that said receiver has refused to pay, and has not paid, dividends on said claim of $78,929.73, so filed and allowed, either to plaintiff or to the defendant surety companies, and has paid...
