Barker v. Wheeler

• Decision Date: 19 September 1900
• Docket Number: 11,288
• Citation: 83 N.W. 678,60 Neb. 470
• Parties: GEORGE E. BARKER ET AL. v. BERT GLENDORE WHEELER
• Court: Nebraska Supreme Court

83 N.W. 678

60 Neb. 470

GEORGE E. BARKER ET AL. v. BERT GLENDORE WHEELER

No. 11,288

Supreme Court of Nebraska

September 19, 1900

ERROR to the district court for Douglas county. Tried below before SCOTT, J. Affirmed upon filing of remittitur.

Affirmed.

E. J Cornish, for plaintiffs in error.

Isaac Adams, contra.

OPINION

SULLIVAN, J.

This proceeding in error brings here for review a judgment of the district court in favor of Bert Glendore Wheeler, a minor and against George E. Barker and William S. Rector. The action was instituted by Miss Wheeler's guardian to recover of the defendants, as sureties upon the official bond of James W. Eller, a sum of money which, it is alleged. Eller received in trust for the plaintiff, and converted to his own use while acting as judge of the county court of Douglas county. After stating that the money in question was paid into court by the administrator of the estate of Bert G. Wheeler, deceased, in pursuance of an order of the court, and that such money belonged to the plaintiff, and was received by Eller as county judge, the petition charges "that said Eller wrongfully, fraudulently and corruptly and in gross violation of his duties as such county judge after having obtained possession of said funds as aforesaid, thereafter converted said sum of $ 1,935.92, the amount belonging to this plaintiff, to his own use, and that ever since said date, said Eller has retained all of said last mentioned sum, save $ 485.92, though payment thereof has been frequently demanded by plaintiff's guardian." The defendants answered, admitting that the plaintiff was an infant; that Eller was county judge of Douglas county during 1892 and 1893, and that they were sureties upon his official bond. The other averments of the petition were denied in general terms.

The first contention of defendants is that the money which Eller was charged with having converted to his own use was not received by him in his official capacity, and that, therefore, the misappropriation of it did not constitute a breach of his official bond. This precise question has been already considered and decided by this court in this case. By the former decision it is settled, so far as this litigation is concerned, that "where a county judge orders an administrator to pay money into court and the latter does so and the county judge receives the money, it is, on his part, an official act and he is liable therefor upon his official bond." Wheeler v. Barker, 51 Neb. 846, 71 N.W. 750. The doctrine thus declared appears to be sound. At any rate it is the law of the case and will not be re-examined at this time. Ripp v. Hale, 45 Neb. 567, 64 N.W. 454; Coburn v. Watson, 48 Neb. 257, 67 N.W. 171; Omaha Life Ass'n v. Kettenbach, 55 Neb. 330, 75 N.W. 827; Hayden v. Frederickson, 59 Neb. 141, 80 N.W. 494; Home Fire Ins. Co. v. Johansen, 59 Neb. 349, 80 N.W. 1047.

To show that Eller had converted the plaintiff's money, there was produced at the trial and received in evidence the record of a decree rendered by the district court of Douglas county in an action brought by the plaintiff against Eller alone. The sureties contend that the judgment against their principal is not admissible against them and does not tend to establish their liability, while the guardian insists that it is not only competent, but indisputable proof. We think the record was sufficiently identified; that it was properly received and that it constituted prima facie evidence of the alleged conversion. In Fire Association of Philadelphia v. Ruby, 49 Neb. 584, 68 N.W. 939, it was held that a judgment of amercement against an officer is prima facie evidence against his sureties when sued upon their bond. This decision seems to be supported by the preponderance of adjudged cases and it will be adhered to. Graves v. Bulkley, 25 Kan. 249; Fay v. Edmiston, 25 Kan. 439; Lipscomb v Postell, 38 Miss. 476; Charles v. Haskins, 14 Iowa 471; Stephens v. Shafer, 48 Wis. 54, 3 N.W. 835; Beauchaine v. McKinnon, 55 Minn. 318, 56 N.W. 1065; Norris v. Mersereau, 74 Mich. 687, 42 N.W. 153. Thomas v. Markmann, 43 Neb. 823, 62 N.W. 206, and Lewis v. Mills, 47 Neb. 910, 66 N.W. 817, holding that such a judgment is conclusive upon the sureties, appear to be, in part at least, based upon Pasewalk v. Bollman, 29 Neb. 519, 45 N.W. 780, which merely decides that a surety who agrees to pay any judgment that may be recovered against his principal must, in the absence of fraud or collusion, abide by his contract. That the court in the last mentioned case clearly recognized the distinction between agreements of sureties to be bound by judgment against their principals and general undertakings to answer for official misconduct is shown by the following statement in the opinion: "In the case of most official bonds the sureties do not promise to pay any judgment rendered against the principal, hence a judgment against the official on such a bond is not conclusive upon the sureties where the latter had no notice of the suit." The defendants in the present case did not agree to satisfy any judgment that might be...