Buffalo County v. Sickle

• Decision Date: 07 August 1884
• Parties: THE COUNTY OF BUFFALO, PLAINTIFF IN ERROR, v. JAMES VAN SICKLE, ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 261

16 Neb. 363

THE COUNTY OF BUFFALO, PLAINTIFF IN ERROR, v. JAMES VAN SICKLE, ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

August 7, 1884

ERROR to the district court for Buffalo county. Tried below before GASLIN, J.

AFFIRMED.

E. C Calkins, for plaintiff in error.

C. J Dilworth, for defendants in error.

OPINION

COBB CH. J.

This action, as brought and tried in the district court, was in the nature of an action of debt on a county treasurer's bond, against an ex-county treasurer and his securities. The question was raised in the court below as to whether the petition stated facts sufficient to constitute a cause of action, and overruled. Yet it is quite apparent that if the theory of this court upon which the case between the same parties was disposed of, as reported in 13 Neb. 103, is correct, the petition fails to state a cause of action against the defendants other than Van Sickle. Indeed it seems to me to fail to state a cause of action even against him upon any correct principle of pleading. It is nowhere stated in the said petition that the said treasurer at any time during his said term covered by the bond sued on had a dollar of the county money in his hands. In the case above cited we held "that statements made by said treasurer to the board of commissioners of the amount of money on hand at the commencement of his third term of office were not conclusive upon the sureties, nor were they estopped from denying, impeaching, or contradicting the same." But even if the so-called statements of the treasurer were conclusive as against the sureties as a matter of evidence, certainly they are not the substantive facts to be alleged in the pleadings. As I understand it, when it is sought to hold either securities or principal for moneys which the principal made default of within a certain term, although he may have made a report or an official statement which may estop him either alone or with his sureties to deny that he was chargeable with the moneys, it must be charged in the pleading directly as a fact that he had the money. Clearly this must be so upon the theory of the above case, because we held that the sureties might deny that their principal had the money at the commencement of the term for which they were security, and that their liability would turn upon the proof of that fact, not upon the fact of their principal having stated in a report or statement that he had such an amount of the county's money in his hands; and if it may be denied and must be proved to enable the plaintiff to recover, it follows logically that it constitutes a material part of the cause of action to be alleged in the petition, and without it the other facts alleged fail to state a cause of action.

The principal points made by plaintiff in its petition in error are as follows: "8. The court erred in refusing to find that the defendants, sureties of the said James Van Sickle, were liable for the difference between the amount in the following funds at the beginning and end of the term for which said bond was given, to-wit: County general fund county sinking fund, district school fund, county special fund, Kearney special fund, and bridge fund.

"9. That the court erred in finding that the proceeds of the said James Van Sickle's property paid into the treasury was applicable alone to the defalcation occurring during said term, and failing to find that said sum was applicable to the defalcation found to exist at the beginning of said term.

"10. In refusing to find that the making good of defalcation existing at the beginning of said term out of funds collected in his said term was a defalcation in his said term."

The petition is too lengthy to admit of its being copied in full in this opinion. I will therefore copy the latter portion of it, including the last alleged report or statement of the said Van Sickle as treasurer:

"That on the 16th day of October, 1879, the defendant, James Van Sickle, as treasurer as aforesaid, in pursuance of the statute made his report in writing to said board of commissioners of the moneys on hand on the first day of October, 1878, and paid out and received from that time to the 15th day of June, 1879, and of the moneys remaining on hand on the 15th day of June, 1879, wherein and whereby he certified that after deducting all sums paid out and all sums for which he was entitled to credit from the sum of the amount so as aforesaid held on the first day of October 1878, and the amount since said time and up to and including the 15th day of June, 1879, collected and received, he still had on hand, on the said 15th day of June, 1879, as treasurer, the sum of twenty thousand four hundred and nine and 24-100 dollars. That said statement was afterwards and on the 16th day of October, 1879, examined by said board of commissioners and...