Cowden v. Trustees of Sch.

• Decision Date: 26 October 1908
• Citation: 235 Ill. 604,85 N.E. 924
• Court: Illinois Supreme Court
• Parties: COWDEN et al. v. TRUSTEES OF SCHOOLS et al.

235 Ill. 604

85 N.E. 924

COWDEN et al.

v.TRUSTEES OF SCHOOLS et al.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Calastin D. Myers, Judge.

Suit by John J. Cowden and others against the trustees of schools, etc., and others. Decree for defendants was affirmed by the Appellate Court, and complainants again appeal. Affirmed.Livingston & Bach, for appellants.

Jacob P. Lindley, for appellees.

VICKERS, J.

Appellants, who were sureties on the official bond of R. S. McIntyre as township treasurer, filed a bill in the circuit court of McLean county for the purpose of correcting certain official reports made by the township treasurer on June 30, 1903, 1904, 1905, and 1906, and to enjoin a suit at law on the official bond until this cause is determined. The circuit court sustained a demurrer interposed by the trustees of schools to the bill, and, appellants having elected to stand by their bill, the same was dismissed for want of equity. That decree has been affirmed by the Appellate Court for the Third District. By their further appeal appellants bring the case to this court for review.

The facts averred in the bill show that McIntyre was appointed township treasurer in 1880 and every two years thereafter, and that he held the office continuously until December[235 Ill. 605]5, 1906, when he died. The bond upon which appellants were sureties covered the term from September 25, 1903, until September 25, 1905. The bill alleges that by his report made June 30, 1903, the treasurer showed cash on hand $2,391.97, and notes, bonds, etc., on hand $4,840; and on June 30, 1904, the report showed cash on hand $2,166.97, notes $3,450, personal notes $665, and distributable funds $41.25. After the death of McIntyre the trustees of schools demanded $7,647.94 as the balance due from the administrator of McIntyre, who turned over only $1,210.93, leaving a balance unpaid of $6,437.01. Appellants charge in their bill that this balance was misappropriated by McIntyre prior to September 25, 1903, and claim that they should not be held liable for any defaults except for such as occurred during the term during which appellants were sureties on his bond.

The questions presented by this appeal have been determined by this court adversely to appellants' contention. In the case of Morley v. Town of Metamora, 78 Ill. 394, 20 Am. Rep. 266, the same contention was made that is now presented by appellants. In that case, as in this, the officer was his own successor, and his sureties sought to escape liability on the ground here interposed. In that case it was said: ‘It is not made to appear very clearly that whatever default occurred took place in the first year the supervisor was in office; but, conceding that fact, we do not think it relieves the sureties on the bond upon which this action is brought from liability. The supervisor was his own successor in office. He had made his annual report, in which he charged himself with having a certain amount of money in his hands. The report was approved, and we must presume it was true. * * * In contemplation of law the money mentioned in his report was in the hands of the supervisor, and the undertaking of the sureties on his bond was that he should account...