Alvord v. The United States

• Decision Date: 01 January 1875
• Citation: 1 Idaho 585
• Parties: James H. Alvord Et Al., Plaintiffs In Error, v. The United States, Defendant In Error.
• Court: Idaho Supreme Court

1 Idaho 585

James H. Alvord Et Al., Plaintiffs In Error, v. The United States, Defendant In Error.

Supreme Court of Idaho

January 1, 1875

CONTINUANCE.-A party is not entitled to a continuance of a cause without showing due diligence and the use of legal means to procure the desired evidence. A bare request to furnish the evidence is, in no sense, a compliance with the requirements of the law.

DUE DILIGENCE.-Where a witness is beyond the reach of the process of the court, a party desiring his testimony must sue out a commission to take his deposition, and a failure to do so shows a want of due diligence and a neglect to use the proper means to obtain the evidence.

PRODUCTION OF DOCUMENTS-NOTICE-PRACTICE.-When documentary evidence which a party needs in the trial of a cause, is in the hands or under the control of the opposite party, before the latter can be required to produce it on the trial, he must have due notice thereof. When he has it in his possession, in court at the trial, notice at the time is sufficient; otherwise, to be effectual, it must be served upon him a sufficient length of time before the trial to enable him to produce it.

JUDGMENT ON THE PLEADINGS.-If the allegations of a complaint are not denied by the defendant, the plaintiff is entitled to a judgment on the pleadings, without any proof on his part.

OFFICIAL BOND-CONVERSION.-In an action upon an official bond for a breach of duty an allegation that the defendant unlawfully converted money to his own use does not change the action into one of tort.

ERROR to the District Court of the First Judicial District, Nez Perce County.

Smith &amp Kelly, for the Plaintiffs in Error. J. W. Huston, United States District Attorney, for the Defendant in Error.

HOLLISTER J.,

delivered the opinion.

WHITSON, J., concurred.

This is a suit brought by the United States on an official bond executed by the defendant Alvord, as marshal of the territory of Idaho, as principal, and the other defendants as securities, for the sum of six thousand two hundred and ten dollars and sixty-three cents balance of the sum of twenty thousand dollars, which the complaint alleges Alvord received, to be paid, laid out, and expended in paying the expenses of the several courts of the United States within the territory, and to account therefor to the proper accounting officers of the treasury department, and that he failed to do so, but converted the same unlawfully to his own use. The answer admits the receipt of the money for such purpose, but pleads as a setoff the payment of the same for various other purposes and on various other accounts for which the United States were responsible.

There is a general denial of indebtedness as charged in the complaint, but this denial, when taken in connection with the accounts on which it is claimed the money was expended, must be understood that he is not indebted because such accounts constitute a valid and complete setoff to the plaintiff's demand.

The answer contains a statement or bill of particulars of the account thus pleaded as a setoff, by which it appears that it consisted of items entirely different from the expenditure which it was his duty to make, as for instance, two thousand one hundred and two dollars and fifty cents for office rent five hundred dollars for expenses in pursuit of a person charged with...