Common School District No. 27 v. Twin Falls National Bank, 5678

• Decision Date: 19 May 1931
• Docket Number: 5678
• Parties: COMMON SCHOOL DISTRICT No. 27, IN THE COUNTY OF TWIN FALLS, STATE OF IDAHO, Respondent, v. TWIN FALLS NATIONAL BANK, a Corporation, Appellant
• Court: Idaho Supreme Court

299 P. 662

50 Idaho 668

COMMON SCHOOL DISTRICT No. 27, IN THE COUNTY OF TWIN FALLS, STATE OF IDAHO, Respondent, v. TWIN FALLS NATIONAL BANK, a Corporation, Appellant

No. 5678

Supreme Court of Idaho

May 19, 1931

SCHOOLS AND SCHOOL DISTRICTS-WARRANTS, ISSUANCE OF-EVIDENCE.

1. Allegations of school district suing bank for conversion of money, held to state cause of action (C. S., sec. 911).

2. Uncertainty as to allegations concerning warrant issued by county auditor without order, held immaterial as to school district's action against bank for conversion of money received on such warrant (C. S., sec. 911).

3. Order by school district is prerequisite to issuance of warrant on county treasurer against school district's funds (C. S., secs. 911, 913, 914).

4. Book containing carbon copy of each order issued by school district to county auditor for warrant on school fund, held admissible to prove nonissuance of order (C. S., sec. 911).

5. Evidence held to make prima facie showing that school district had not issued order to county auditor for warrant against school district's funds (C. S., sec. 911).

6. No presumption existed that county auditor had returned order directing him to issue warrant against school funds, to school district, where auditor had not testified that he received order from district (C. S., secs. 911, 914).

7. No presumption existed that county auditor returned order directing him to issue warrant, to school district, where district's witnesses had not been asked for order (C. S secs. 911, 914).

8. Presumption may not be based on another presumption.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for conversion. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

James R. Bothwell and W. Orr Chapman, for Appellant.

Allegations that an instrument is "illegal," "unauthorized," "void," "unlawful," "not in the manner prescribed by law," "in violation of law," are mere conclusions, and a complaint to be sufficient must state of allege the ultimate facts. (Olles v. Orr, 6 Idaho 474, 56 P. 162; Wadsworth v. Erwin, 201 N.Y.S. 311; Lipson v. Evans, 133 Md. 370, 105 A. 312; Burlingame v. Traeger, 101 Cal.App. 365, 281 P. 1051; Beezley v. City of Astoria, 126 Ore. 177, 269 P. 216, 60 A. L. R. 504; Beckett v. Morse, 4 Cal.App. 228, 87 P. 408; Comstock v. Larimer & Weld Res. Co., 58 Colo. 186, Ann. Cas. 1916A, 416, 145 P. 700; Commonwealth v. McCormack, 177 Ky. 474, 197 S.W. 977.)

The best evidence of which the case is susceptible must be produced or introduced. (Fisher & Ball v. Carter, 178 Iowa 636, 160 N.W. 15; Pandaleon v. Brecker, 227 Mich. 297, 198 N.W. 953; School District No. 7, Rogers County, v. Eaton, 97 Okla. 177, 223 P. 857; Ft. Lyon Canal Co. v. Bennett, 61 Colo. 111, 156 P. 604; Lauderback v. Multnomah County, 111 Ore. 681, 226 P. 697.)

Sweeley & Sweeley, for Respondent.

Powers granted to public officers can be exercised only in the manner and under the circumstances prescribed by law. Any attempted exercise in any other way is a nullity. (Ex parte Farrell, 36 Mont. 254, 92 P. 785; Bingham County v. Bank, 122 F. 16, 58 C. C. A. 332.)

Records of a corporation are the best evidence of its acts, and so of whether it has acted at all. (Just v. Idaho Canal & Imp. Co., 16 Idaho 639, 133 Am. St. 140, 102 P. 381; Corcoran v. Sonora Min. & Mill. Co., 8 Idaho 651, 71 P. 127.)

GIVENS, J. Budge, Varian and McNaughton, JJ., and Sutphen, D. J., concur.

OPINION

GIVENS, J.

Respondent school district sued in conversion to recover from appellant bank $ 205 paid the bank by the treasurer of Twin Falls county, as treasurer of the district, on a warrant issued by the auditor of the county to the bank, alleging that no order for the warrant, as required by C. S., sec. 911, had ever been issued by the district, and that there was no valid debt supporting the warrant.

The bank denied the above allegations, but introduced no evidence.

Appellant demurred to the complaint on the grounds that the complaint failed to state a cause of action; misjoinder of parties; and uncertainty, ambiguity and unintelligibility as to who the officers of respondent district were, the allegations concerning the warrant, and how the money, recovery for which is sought, was obtained by appellant.

The demurrer did not contest as uncertain, etc., the allegations that no order was issued, and no debt was owing from respondent to appellant. These allegations, though perhaps not as definite as they might have been, were sufficient to state a cause of action; there was no misjoinder of parties, and the uncertainty as to the allegation anent the warrant, if any, is immaterial as to the action for conversion plead. ( Crews v. Baird, 2 Idaho 103, 6 P. 116.)

Otherwise the appeal rests on the asserted insufficiency of the evidence, and lack of liability of the bank under the circumstances disclosed by the record.

An order by the district, countersigned by the county school superintendent, directed to the county auditor, is an absolute prerequisite to the issuance by the county auditor of a warrant on the county treasurer, to be charged against the funds of the district (C. S., secs. 911, 913, 914), because the order is the only instrumentality specified by the statutes whereby the district indicates what charge is to be made against it, and authorizing the payment of its funds. The county auditor, without an order, could not know what charge to make, and would have no authority to issue a warrant against the school district funds. The statute specifying the procedural method must be followed, and the warrant issued to the payee in the order. (State v. Title Guaranty & Surety Co., 27 Idaho 752, at 763, 152 P. 189, at 192; Evans v. Swendsen, 34 Idaho 290, 200 P. 136; Sharp v. Brown, 38 Idaho 136, 221 P. 139.)

Respondent in support of its allegation that no order for this $ 205 had been issued, produced the county auditor, who testified that he had issued the warrant on three orders, the amounts thereof as specified on the warrant: School District No. 8, $ 110; No. 27, $ 205; and No. 62, $ 240. He was not asked on direct or cross examination whether any of the orders for which he issued the warrants was an order drawn by respondent. This indefiniteness justified the trial court in doubting whether the auditor had an order issued by respondent, and in concluding from the balance of the testimony outlined below, that respondent had issued no such order.

The chairman and clerk of the respondent's board of trustees during the period the warrant was issued March, 1929, testified no order for $ 205 had been issued. They produced the only record the district had of such transactions, furnished by the county school superintendent. This book contained on printed forms, a carbon copy of each order issued, and showed no copy of any such order. Objection was made that this book was not the best...