Barker v. Wheeler
| Citation | 60 Neb. 470,83 N.W. 678 |
| Parties | BARKER ET AL. v. WHEELER. |
| Decision Date | 19 September 1900 |
| Court | Supreme Court of Nebraska |
1. The determination of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and ordinarily will not be re-examined in a subsequent appellate proceeding.
2. A judgment against an officer is prima facie evidence against his sureties when sued upon an official bond, both actions being grounded upon the same alleged delinquency.
3. Such an adjudication is conclusive evidence of the liability of the sureties only in case they agreed to abide by any judgment that might be rendered against their principal.
4. The second point in the syllabus of Thomas v. Markmann, 62 N. W. 206, 43 Neb. 823, and the first point in the syllabus of Lewis v. Mills, 66 N. W. 817, 47 Neb. 910, are overruled.
5. A county judge who receives money in his official capacity, and converts the same to his own use, is guilty of official misconduct.
6. In an action grounded upon an alleged conversion of money, neither payment nor accord and satisfaction can be shown under a general denial.
7. In an action against the sureties on an official bond for money converted by their principal during his official term, where the answer is a general denial, it is error to exclude evidence tending to show the date when the conversion actually occurred.
8. Judgment rendered for too large a sum, and plaintiff allowed to remit excess.
Error to district court, Douglas county; Scott, Judge.
Action by Bert Glendore Wheeler against George E. Barker and others. From judgment for plaintiff, defendants bring error. Affirmed on conditions.E. J. Cornish, for plaintiffs in error.
Isaac Adams, for defendant in error.
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 on 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;Association v. Kettenbach, 55 Neb. 330, 75 N. W. 827;Hayden v. Frederickson, 59 Neb. 141, 80 N. W. 494;Insurance 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 Association 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, Id. 439; Lipscomb v. Postell, 38 Miss. 476;Charles v. Hoskins, 14 Iowa, 471;Stephens v. Shafer, 48 Wis. 54, 3 N. W. 835;Beauchaine v. McKinnon, 55 Minn. 318, 56 N. W. 1065;People v. Mercereau, 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...
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