Cnty. of Buffalo v. Van Sickle
Decision Date | 07 August 1884 |
Citation | 16 Neb. 363,20 N.W. 261 |
Parties | COUNTY OF BUFFALO v. VAN SICKLE. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Buffalo county.
E. C. Calkins, for plaintiff.
C. J. Dilworth, for defendant.
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 excounty 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,S. C. 13 N. W. REP. 19, 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 county 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 sureties, 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:
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 sixteenth 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 fifteenth day of June, 1879, and of the moneys remaining on hand on the fifteenth 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,...
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