Bush v. Johnson County
| Decision Date | 10 April 1896 |
| Docket Number | 8254 |
| Citation | 66 N.W. 1023,48 Neb. 1 |
| Parties | DAVID R. BUSH ET AL. v. JOHNSON COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Johnson county. Tried below before BUSH, J.
AFFIRMED.
S. P Davidson, T. Appelget, and I. Reavis, for plaintiffs in error:
The sureties are released because the evidence fails to bring their liability within the conditions of the bond.
The county board settled with the county treasurer and passed and approved all his accounts. This settlement was final and the county should not recover.
Reference was also made to the following cases: Cedar County v. Jenal, 14 Neb. 254; State v. Hill, 47 Neb. 456.
J. Hall Hitchcock and E. W. Thomas, contra.
References: First Nat. Bank of Wymore v. Miller, 37 Neb. 500; Van Sickel v. Buffalo County, 13 Neb. 103; Vivian v. Otis. 24 Wis. 518; 19 Am. & Eng. Ency. Law, 544-556.
The opinion contains a statement of the case.
David R. Bush was elected treasurer of Johnson county at an election held during the fall of 1889, and took possession of and commenced the performance of the duties of the office in January, 1890. He was re-elected in the fall of 1891, and in January, 1892, closed his first and began his second term as treasurer. The other plaintiffs in error were his bondsmen for the first term. Bush's immediate predecessor in the office of county treasurer, when he turned over the office and funds in January, 1891, delivered to Bush some forty or fifty dollars in actual cash, or money in the strictest meaning of the term, and gave him certificates evidencing deposits which the retiring treasurer then had in banks, and also some checks. These were accepted by the incoming treasurer and received, as between him and the outgoing one, as payment of the amounts stated in them. One of these certificates, or checks, was for the sum of $ 6,000 payable by the bank of Russell & Holmes at Tecumseh. Bush presented this at the banking office of Russell & Holmes, and in lieu of it received a certificate of deposit for the sum named. This he retained through and beyond the entire time and close of his first term as treasurer. In his report to the county board, at or near the close of his first term, a certain balance was shown to be on hand. A portion of this balance was this sum evidenced by the certificate mentioned. The bank in which this money was deposited continued business in the regular manner until October, 1891, at which time it closed, a month or two before the expiration of Bush's first term. When the facts were discovered in regard to this and some other certificates of deposit,--we have here to deal particularly with this one,--action was instituted on the bond against plaintiffs in error to recover the amount as an alleged shortage. There were two principal questions raised by the pleadings: First, that Bush, the county treasurer, never received the money, the $ 6,000, to recover which was the object of this suit; second, that at the expiration of his term of office he made a settlement of his doings and accounts as county treasurer with the county commissioners, whereby the county became bound, and that, in consequence, it cannot, or should not be heard to assert any claim as against the treasurer or his bondsmen. A jury was waived and a trial had. Judgment was rendered against the treasurer and bondsmen for the $ 6,000 and interest thereon. The case has been brought to this court by proceedings in error.
In regard to what transpired in January, 1889, between the outgoing treasurer and Mr. Bush, the incoming officer, in regard to the funds of the county and their transfer from one to the other of the officers, Mr. Zutavern, the retiring treasurer, testified as follows:
Q. Mr. Zutavern, what official position did you hold in this county in the years '88 and '89?
A. County treasurer.
Q. Who was your successor?
A. D. R. Bush.
Q. Do you know how much money you turned over to Mr. Bush at the time you went out of the office?
A. I do not know now.
Q. You may state to the court how you delivered the things in the treasurer's office to Mr. Bush, at the time your term of office expired, with reference to the money on hand.
A. I turned over all the money that belonged to the county to D. R. Bush.
Q. How did you turn it over?
A. Why, by checks, most of it. I guess I had a little cash on hand, maybe $ 40 or $ 50, in the drawer, and I turned that over. I turned him over a few certificates.
Q. State how it was you did not give him the money.
A. I had the certificates and asked Bush if he could use them, whether they would answer as well as money, and he said they would. There was nothing said about me getting the cash, I do not think.
Q. State the facts as to whether they were equivalent to cash at that time, and for how long.
A. They were.
Q. Did Mr. Bush ever give you any information, in any form or manner, after this, that he could not use these certificates, or ask you to take them up, or any of the things you turned over as the amount of money on hand?
A. No, sir.
Q. Why didn't you turn the money over in cash at the expiration of your term of office to Mr. Bush?
A. I had these certificates and showed them to Bush and asked him if he could use them, and he said that he could. That was my reason. He said they would do him as well as money.
Q. You were acquainted with the financial condition of the different banks upon which you had the bank certificates?
A. I think I was.
Q. You were acquainted with their condition with reference to paying of their papers presented to them, for a year after that?
Q. From that time on for another year?
A. I think I was.
Q. Well, what was it?
A. They were good.
Q. They paid all of the demands made on them?
A. Yes, sir.
A portion of the testimony of Mr. Bush is as follows:
Q. Mr. Bush, you are the defendant, one of the defendants, in this case?
A. Yes, sir.
Q. You are the principal defendant, are you not, in this case?
A. Yes, sir.
Q. (Handing witness plaintiff's Exhibit "E.") What is that paper you now have?
A. It is a certificate of deposit on the bank of Russell & Holmes.
Q. You are the person who is named in that certificate as payee, are you?
A. Yes, sir.
Q. You were county treasurer at that time?
A. Yes, sir.
Q. It was paid to you as county treasurer?
A. Yes, sir.
Q. The consideration of that check was county money?
A. It was a check given me for county money.
Q. And you took the check to the bank and got that?
A. Yes, sir.
Q. At your own request?
A. At the request of Mr. Charles Holmes.
Q. Did you ask him for the cash?
A. No, sir.
Q. You did not want it?
A. No, sir.
Q. You could have got it?
A. I do not know whether I could or not.
Q. You had every reason to believe it? You had not known them to refuse any certificates, had you?
A. No, sir.
Q. You have got money out of there as county treasurer since that was deposited there, haven't you?
A. Yes, sir.
Q. That was a part of the funds you received from Zutavern, your predecessor?
A. Yes, sir.
Q. At the end of your first term you did not turn that over except in the form of a certificate as it appears there, to yourself?
A. There was no change.
Q. Just that certificate?
A. Yes, sir.
Q. When you settled with the county board at the end of your first term, January, 1892, you turned over that certificate in your report to the county commissioners as part of the funds on hand?
A. Why, I suppose you would call it that; simply in my own hands.
Q. You turned it over to yourself as successor?
A. I believe that is what it would be.
Q. You never turned any cash over to represent that?
A. No, sir.
In this connection it may be further said that all of the testimony introduced which had a bearing upon the question of whether or not the bank of Russell & Holmes was at the time of the transaction between Zutavern and Bush, of date January, 1890, solvent and meeting all demands for payments of money made upon it, tended to establish that it was so, and so doing, and continued in such condition for more than a year subsequent thereto. It is clear from the evidence that Mr. Bush, on assuming the duties of the office of county treasurer, received from the retiring officer a check or certificate of deposit entitling him to demand from the bank of Russell & Holmes the sum of $ 6,000, and that it was so accepted by him in such form, in lieu of the cash, either coin or legal tender currency; that he did not demand any other or different payment, but waived it, and the check or certificate of deposit was by him delivered to the bank and canceled, and at the request of the banker he received a new certificate of deposit for the sum named, payable to himself as county treasurer. The title or right to the sum of money involved was, by the methods stated, transferred from Mr....
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