Clark v. Douglas

• Decision Date: 17 May 1899
• Docket Number: 8888
• Citation: 79 N.W. 158,58 Neb. 571
• Parties: D. C. CLARK ET AL. v. CAROLINE DOUGLAS, ADMINISTRATRIX
• Court: Nebraska Supreme Court

79 N.W. 158

58 Neb. 571

D. C. CLARK ET AL. v. CAROLINE DOUGLAS, ADMINISTRATRIX

No. 8888

Supreme Court of Nebraska

May 17, 1899

ERROR from the district court of Cedar county. Tried below before EVANS, J. Affirmed.

AFFIRMED.

J. C Robinson and Wilbur F. Bryant, for plaintiffs in error.

Miller & Ready and W. E. Gantt, contra.

OPINION

HARRISON, C. J.

In condemnation proceedings instituted by a railroad company the land of A. Hart Norris, since deceased, was taken and the amount of the appraisal thereof was by the railroad company deposited with the then county judge of Cedar county, of whom, as such officer, the plaintiffs in error were the sureties on his official bond during his second term of office. This action was instituted against the officer and the bondsmen to recover an amount of the sum of said condemnation money for which it was asserted he had failed to account or pay to the party entitled to receive it. At the close of a trial of the issues joined the presiding judge of the district court peremptorily instructed the jury in favor of the defendant in error, and a verdict was returned in accordance with the instruction, and judgment in the due course of the proceedings was rendered thereupon. A reversal of the judgment is sought in the present error proceeding to this court. A recent decision of this court has disposed of some of the questions presented in this case (see Chicago, B. & Q. R. Co. v. Philpott, 56 Neb. 212, 76 N.W. 550), wherein it was determined that if a county judge fails at the expiration of his term of office to pay to his successor or to the person entitled thereto condemnation money which had been regularly deposited with him, it constitutes a breach of his official bond, and a cause of action on such bond accrues to the person damaged by the breach, and the action may be instituted without a demand on the party for payment. (See, also, Clelland v McCumber, 15 Colo. 355, 25 P. 700.) It is urged that by the statutory provision which governed bonds of county officers, inclusive of county judge, the instruments were required to be joint and several (see Compiled Statutes, ch. 10, sec. 3); that the one given, and upon the obligations of which this suit is predicated, was only joint, and was void for its non-compliance with the demands of the statute. It is true that in terms the bond in suit was joint, and it is also true that by statute it was required to be joint and several, but it is not for such reason void. It is good to the extent it complied with the legislative enactment. (4 Am. & Eng. Ency. Law [2d ed.] 669, note 2 of page 668.) The defect in the bond was one of which the public or county might have complained but not the sureties. There was sufficient evidence to establish, prima facie at least, that the principal in the bond received the money and retained it through a short portion of the first and the entire second term of office. To escape liability it devolved upon the sureties on the bond for his second official term to show that the misappropriation, if any, occurred prior to his second term. (Stoner v. Keith County, 48 Neb. 279, 67 N.W. 311; Heppe v....