Cedar Cnty. v. Jenal
| Decision Date | 22 March 1883 |
| Citation | 14 Neb. 254,15 N.W. 369 |
| Parties | CEDAR COUNTY v. JENAL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Cedar county.C. C. McNish, W. E. Gantt, and Gamble Bros., for plaintiff.
B. B. Boyd, for defendant.
The action in the court below was brought on behalf of Cedar county, to recover from Peter Jenal, late treasurer of said county, and the other defendants, as sureties on his official bond, a sum of money which it was claimed he had failed and refused to pay over to L. M. Howard, his successor, at the expiration of his term of office. Although the record is exceedingly voluminous, including as it does, unnecessarily, all of the testimony taken in the case, the real gist of the controversy is embraced within very narrow limits. The defendants, by their answer, admitted that at the expiration of Jenal's term the amount of money demanded was in his hands, belonging to the county; but they alleged in defense full payment, “in the manner required by law.” Payment being the only defense claimed, if this failed, the plaintiff was entitled to judgment as prayed. The matter relied on for payment is stated in the answer thus: “That on the fourteenth day of January, 1879, the said Peter Jenal, under the express direction of one Lewis M. Howard, who at that time was acting as treasurer of Cedar county, Nebraska, and recognized by the plaintiff as the successor in office of the said Peter Jenal, did pay of said funds, to one M. M. Parmer, (who was a banker at Yankton, in Dakota territory,) the sum of $3,500, and received certificates from said M. M. Parmer of said payment, which said Peter Jenal duly delivered to said Louis M. Howard, and said Howard received as payment of the said sum on the amount to be accounted for to the said plaintiff, by reason of the amount found chargeable to the said Peter Jenal on the settlement with said plaintiff, as set forth in said plaintiff's petition, which, with the amounts admitted in said petition to have been paid, fully satisfies the amount due at said settlement.” From this it appears that the payment relied on, more briefly stated, was by certificates of deposit purchased from Parmer with the funds in Jenal's hands, by direction of the succeeding treasurer. If, in the opinion of the court, this, as to the county, were no payment, the defense fails and the judgment must be reversed.
A very large number of errors are assigned, but all, or nearly all, of them depend upon whether this plea of payment is any defense or not. If it be a defense, then the testimony objected to by the plaintiff was rightly received, and the instructions to the jury properly given; if it be not, then the testimony ought to have been excluded, and instructions substantially as requested by the plaintiff, which were refused, given.
Is the matter pleaded as payment a defense? We think not. The bond given by the defendants, on which the action was brought, required Jenal to “promptly pay over to the person or officer entitled thereto all money which” might “come into his hands by virtue of his said office,” and to “faithfully account for all balances of money remaining in his hands at the termination...
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Paxton v. State
...v. Finley, 26 Mich. 249; Barnes v. Van Keuren, 31 Neb. 165. References as to question of shortage in Bartley's first term: Cedar County v. Jenal, 14 Neb. 254; State Hill, 47 Neb. 456; In re Treasurer's Settlement, 51 Neb. 116; Bush v. Johnson County, 48 Neb. 1; Whitney v. State, 53 Neb. 287......
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State v. Hill
...of theft, robbery, or unavoidable loss. (State v. Keim, 8 Neb. 63; First Nat. Bank of South Bend, Ind. v. Gandy, 11 Neb. 431; Cedar County v. Jenal, 14 Neb. 254; Wayne County v. Bressler, 32 Neb. 818; State Hill, 38 Neb. 698; United States v. Prescott, 3 How. [U.S.] 587; United States v. Mo......
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State v. Hill
...issued by a bank, upon which no money has been realized, is not such a payment as will release the outgoing officer. Cedar Co. v. Jenal, 15 N. W. 369, 14 Neb. 254, adhered to. Per Norval, J. 6. Although a state treasurer has no right to receive in payment of the public revenues anything but......
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Paxton v. State
...of such drafts, certificates of deposit, and other credits. It was held otherwise in an able opinion by Lake, C. J., in Cedar Co. v. Jenal, 14 Neb. 254, 15 N. W. 369, wherein it was stated: “Thus we see that, it being money that was in Jenal's hands, belonging to the county, both the law an......