County of Ada v. Ethel Tonkin Clark

• Decision Date: 28 January 1927
• Citation: 253 P. 847,43 Idaho 489
• Parties: COUNTY OF ADA, Appellant, v. ETHEL TONKIN CLARK (Otherwise ETHEL T. CLARK) and UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Respondents
• Court: Idaho Supreme Court

253 P. 847

43 Idaho 489

COUNTY OF ADA, Appellant, v. ETHEL TONKIN CLARK (Otherwise ETHEL T. CLARK) and UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Respondents

Supreme Court of Idaho

January 28, 1927

OFFICERS-LIABILITY TO ACCOUNT FOR PUBLIC FUNDS - EVIDENCE-BURDEN OF PROOF-PRINCIPAL AND AGENT-VERDICT SHOULD HAVE BEEN DIRECTED - ENTRY OF JUDGMENT ON REVERSAL.

1. In action on bond of one entrusted with duty to safely keep and account for public funds, when plaintiff shows amount received by and chargeable to officer, it is for him to show items of disbursement for which he claims credit and to which he is entitled as disbursements provided by law.

2. In action against county treasurer and surety to recover payment of certificates issued to witnesses under C. S., sec. 9135 evidence showing payment of certificates to person other than to whom they were issued held to place burden on defendant of establishing that person to whom money was paid had lawful authority to receive it, in view of section 3562, subd. 6 requiring disbursement by treasurer of county moneys on warrants or as otherwise provided by law.

3. Proof of mere possession of certificate, issued to witness under C. S., sec. 9135, by an agent, without other extraneous evidence of implied or actual authority or estoppel or ratification, is not evidence of authority to collect, nor is payment to such agent evidence of payment to principal.

4. Where verdict should have been directed under evidence, a new trial will not be granted on reversal, but judgment will be ordered entered for party so entitled.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action against county treasurer and surety on her bond. Judgment for defendants. Reversed and remanded.

Reversed and remanded, with instructions. Costs awarded to appellant. Petition for rehearing denied.

Laurel E. Elam and Sullivan & Sullivan, for Appellant.

A directed verdict in favor of one party to an action is proper where there is no evidence to support a verdict, even if one were found, for the other party. (Work Bros. v Kinney, 7 Idaho 460, 63 P. 596; Keane v. Pittsburg L. M. Co., 17 Idaho 179, 105 P. 60; Southwest Nat. Bk. v. Baker, 23 Idaho 428, 130 P. 799; Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090; Pocatello S. T. Co. v. Henry, 35 Idaho 321, 27 A. L. R. 337, 206 P. 175; Moody v. Morris-Roberts Co., 38 Idaho 414, 226 P. 278; Lamb v. Licey, 16 Idaho 664, 102 P. 378.)

In case of reversal herein, a judgment should be ordered for plaintiff, and not a new trial. (Work Bros. v. Kinney, supra; Southwest Nat. Bk. v. Baker, supra; Exchange State Bank v. Taber, supra; Gorman v. County Commrs., 1 Idaho 655; Lamb v. Licey, supra.)

E. P. Barnes, C. C. Cavanah and Alfred A. Fraser, for Respondents.

Where there is any evidence or inference that can be drawn from the evidence why the jury rendered the kind of verdict they did, the court would not be warranted in either granting a directed verdict or motion for a new trial. (Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 27 A. L. R. 337, 206. P. 175; Moody v. Morris-Roberts Co., 38 Idaho 414, 26 P. 278; Smith v. Marley, 39 Idaho 779, 230 P. 769; McKenna v. Grunbaum, 33 Idaho 46, 190 P. 919; Dellwo v. Peterson, 32 Idaho 172, 180 P. 167; Stewart v. Stewart, 32 Idaho 180, 180 P. 165; Riordan v. Equitable Life, etc., 31 Idaho 657, 175 P. 586; Donovan v. Boise City, 31 Idaho 324, 171 P. 670; Johansen v. Looney, 31 Idaho 754, 176 P. 778; Tipsword v. Potter, 31 Idaho 509, 6 A. L. R. 527, 174 P. 133; Palcher v. Oregon Short Line Ry., 31 Idaho 93, 169 P. 298; Goldensmith v. Snowstorm M. Co., 28 Idaho 403, 154 P. 968; Southern Idaho Adventists v. Hartford Fire Ins. Co., 26 Idaho 712, 145 P. 502; Smith v. Potlatch Co., 22 Idaho 782, 128 P. 546; Keane v. Pittsburg Lead M. Co., 17 Idaho 179, 105 P. 60; Stricker v. Hillis, 17 Idaho 646, 106 P. 1128; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Later v. Haywood, 12 Idaho 78, 85 P. 494.)

TAYLOR, J. Wm. E. Lee, C. J., and T. Bailey Lee, J., concur. Budge, J., did not sit at the hearing and took no part in the decision. Givens, J., disqualified.

OPINION

TAYLOR, J.

This action was brought by Ada county against the defendant Clark, county treasurer, and her surety, United States Fidelity and Guaranty Company. This appeal is from a judgment in favor of defendants, and an order denying a motion for new trial.

The complaint, in two causes of action based upon alleged delinquencies in two terms of office as treasurer, alleges a violation of duty by defendant in her having failed and neglected to faithfully perform the duties of her office, or to safely keep the county moneys coming into her hands, and pay them out only as provided by law, but that she did pay them out wrongfully, unlawfully, negligently and contrary to law. Each cause of action is based upon payment by her of numerous certificates issued to witnesses under C. S., sec. 9135. The complaint alleged at great length and with great particularity the facts as to these witness certificates, alleging that one Paul R. Dempsey procured them to be issued by the clerk of the court to fictitious named persons who had not appeared as witnesses; that the certificates were false, invalid, fraudulent and fictitious; that Dempsey presented these certificates to the county treasurer for payment, and that, at his request, without indorsement of the persons named therein, or any direction or authority from them, the treasurer issued checks directly to and payable to Dempsey for the amounts; that these checks were paid by the banks out of county moneys, and appropriated by him to his own use.

Dempsey, the only witness called by plaintiff, testified in detail as to his method of procuring the issuance of these certificates; that the witnesses named were fictitious persons, and the certificates were false; that he led the treasurer to believe that the certificates were genuine, sometimes stating to her, as a reason for asking that the payment be made to him, that the prosecuting attorney had advanced funds to some of these witnesses, and in order to deduct these amounts it would be necessary for the prosecuting attorney to have the handling of the money, at other times that as to certain witnesses he had promised them he would send them the money; that at times he took to the treasurer a number of certificates at once; that he received from her checks payable to himself for the amounts, cashed them and appropriated the money to his own use. The certificates were indorsed by Dempsey with the name of the payee "By P. R. Dempsey." These, with the checks payable to Dempsey, were introduced in evidence. The defendant Clark was the only witness called by defendants.

Both sides have argued at length upon the right of the jury to apparently disregard the evidence of Dempsey, upon grounds of his having been, or not having been, impeached, or corroborated, or there being, or not being, a conflict in the evidence as to the witnesses being fictitious. In our view, it will be unnecessary to discuss this feature of the case, nor the right of the jury to disregard Dempsey's testimony.

The plaintiff asked the court to instruct the jury to render a verdict in its favor. It made the refusal of this instruction one of its grounds of motion for new trial.

The county, under the facts and pleadings, was not put to the necessity of establishing, by Dempsey or otherwise, that the payees of these witness certificates were fictitious persons. Under C. S., sec. 3562, it is the duty of the county treasurer to--

"6. Disburse the county moneys only on county warrants issued by the county auditor, based on orders of the board of commissioners or as otherwise provided by law."

The provision of C. S., sec. 9135, for witness certificates is one of these instances authorizing the treasurer to pay out money "as otherwise provided by law." In an action upon the bond of one entrusted with the duty to safely keep and account for public funds, when the plaintiff shows the amount received by and chargeable to him it is for him to show items of disbursement for which he claims credit, and to which he is entitled as disbursements provided by law. (State v. Hays, 99 Tenn. 542, 42 S.W. 266.)

The admissions of the defendants in their pleadings, and the evidence of defendant Clark with evidence by exhibits, the...