Bernhard v. City of Wyandotte

• Decision Date: 10 April 1885
• Citation: 6 P. 617,33 Kan. 465
• Parties: CHRIS. BERNHARD, et al., v. THE CITY OF WYANDOTTTE
• Court: Kansas Supreme Court

6 P. 617

33 Kan. 465

CHRIS. BERNHARD, et al., v. THE CITY OF WYANDOTTTE

Supreme Court of Kansas

April 10, 1885

Error from Wyandotte District Court.

ACTION by The City of Wyandotte, on the bond Chris. Bernhard as treasurer of said city. Judgment of City, at the April Term 1884. The defendants bring that case to this court. The opinion states the material facts.

Judgment affirmed.

D. B Hadley, John T. Harlow, and Nathan plaintiffs in error.

Henry Mc Grew, city attorney, and Goodin & for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Wyandotte county by the city of Wyandotte against Chris. Bernhard, as principal, and J. W. Wahlenmaier, Byron Judd, and Herman Belter, as sureties, on the official bond of Bernhard as the treasurer of said city. The case was referred, by the consent of the parties, to Hon. Nelson Cobb for hearing, who tried the case, and found in favor of the plaintiff and against the defendants in the sum of $ 6,586.66, for which sum, with costs, the district court rendered judgment. The defendants, as plaintiffs in error, now seek a reversal of such judgment by petition in error in this court.

We shall consider the various points made by counsel. We think the petition in the court below was sufficient. It gave the substance of the bond sued on, and for a cause of action thereon alleged several breaches thereof. It alleged that Bernhard, by virtue of his office, received large sums of money belonging to the city, which were not used or paid out for the city, and which he failed to pay over to his successor in office, or to account for, and which he converted to his own use. Also, specific sums are mentioned in the petition as not having been accounted for. The breaches of the bond are also alleged in detail, as well as generally. This we think is sufficient. The old forms of pleading are abolished in Kansas, (Civil Code, § 85,) and all that the pleader is now required to do is to state the facts of his case in ordinary and concise language and without repetition, (Civil Code, §§ 87, 94;) and this was sufficiently done in the present case; and certainly, as no demurrer was filed to the petition, no motion to make it more specific or definite, and as no objection was made to the introduction of evidence because of any supposed defect in the petition in not stating facts sufficient to constitute a cause of action, the petition must now be held to be sufficient. The first objections made to the petition were placed in the motion for a new trial; but, as before stated, we think the petition is sufficient, and sufficient as setting forth a cause of action on Bernhard's official bond. It stated a cause of action independent of the allegations of conversion; and such allegations may be treated as surplusage.

On the trial of the case, the referee, in several instances, did not decide the questions arising upon objections made to evidence at the time when the objections Were made, but reserved his decision on such questions until his final decision of the case. This was not error. It is the almost universal practice of courts and referees to try cases in this manner. The practice hastens the trial, and by this means the objections are more intelligently considered and decided. Of course there might be cases where a court or referee would err materially if it did not immediately render its decision upon objections made to evidence; but this is not one of such cases. This is one of that class of cases in which justice could better be done by the referee's doing as he did. The reserved questions were all decided at the time of the final decision, and the evidence admitted or excluded as the referee thought right under the law and the other evidence introduced, and proper exceptions noted.

It appears in this case that the defendant, Bernhard, served two terms as city treasurer of Wyandotte; that he gave a bond for each term; and that the other defendants, and they only, were his sureties on each of such bond. The present action is on the second bonds. It also appears that the plaintiff introduced evidence for the purpose of showing that a large amount of money belonging to the city was in Bernhard's hands at the time he gave the second bond. This evidence was objected to on the ground that it was incompetent, for the reason that the action was upon the second bond only. We think the evidence was competent. It was not introduced for the...