Custer County v. Tunley

• Decision Date: 02 March 1900
• Citation: 82 N.W. 84,13 S.D. 7
• Parties: CUSTER COUNTY, Plaintiff and respondent, v. BENJAMIN M. TUNLEY et al., Defendant and appellant.
• Court: South Dakota Supreme Court

13 S.D. 7

82 N.W. 84

CUSTER COUNTY, Plaintiff and respondent,

v.

BENJAMIN M. TUNLEY et al., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Custer County, SD Hon. Levi McGee, Judge Reversed W. E. Benedict Attorney for plaintiff. Charles W. Brown Attorney for defendants. Opinion filed March 2, 1900

CORSON, J.

This is an action against Benjamin M. Tunley, formerly treasurer of Custer county, S. D. and the sureties upon his official bond. The judgment was in favor of the plaintiff for the sum of $659.71, and from this judgment both parties appeal.

In 1890 the defendant Tunley was elected county treasurer of the plaintiff county, and was re-elected in 1892. holding the office from January, 1891, to January, 1895. The sureties who are defendants in this action were sureties upon his official bond for the second term, commencing January 3, 1893. At the time the sureties executed the bond in question, the said Tunley had in his hands as county treasurer, as shown by the books in his office and the auditor’s office, the sum of $21,009.69. On the trial there was evidence tending to prove, and the referee so found, that during his first term he had received $1,090.70 (which was reduced by order of the court to $631) which was not charged to the treasurer on the records of his office, nor on the records of the auditor’s office. These sums, it appears, were received by the treasurer as partial payments from various taxpayers on account of their personal property taxes, and for which receipts were given by the treasurer as such, but not the usual official tax receipts. It further appears that during his second term of office he received in like manner $757.57. These amounts the treasurer had not charged himself with in the official records of his own office, and he was not charged with these sums, or any portion of them, by the county auditor. It was further found that the treasurer had accounted, in his various settlements during his two terms of office, for $200.12 as received by him from the former treasurer, which in fact he never had received. It further appears that in paying out moneys for the county he made overpayments to the amount of $116.70, for which he was credited by the referee. It further appears that at the expiration of the term of Tunley’s office he had in the Bank of Hermosa and the Bank of Hot Springs about $2,600, which said banks claimed to hold for amounts due them from said Tunley. The sureties, being desirous that actions should be commenced against these banks to recover the amounts claimed to be due from them to the county, entered into an agreement with the county by which it was stipulated that the county should bring these actions, without in any manner impairing its claim against them as sureties on Tunley’s official bond. These actions were commenced by the county, and the amount due from the banks recovered, and paid to the county. In that agreement was the following: “It is further agreed that nothing herein contained shall affect the liability, if any, of the said parties of the second part [the sureties] for the payment of the said sum of about 700, so claimed as aforesaid to have been received by said Tunley as partial payments on taxes, it being understood that said county may begin a suit against said parties of the second part to recover said sum of about $700 last named.” While the amount involved in this case is not large, the questions to be considered are quite important. It is claimed by the sureties:

(1) That they are not liable for any of the moneys received by the treasurer as partial payments on personal property taxes, as they were never in fact paid into the county treasury by being charged against the treasurer either in the books of his own office or in those of the county auditor.

(2) That, in no event, are they liable for the money received by him as partial payments on personal property taxes during his first term of office, for the reason that the moneys so received, never being charged to him, were not paid over to himself as his own successor, the sureties only being liable for the amount which appeared by his own books and those of the county auditor to have been actually in the treasury at the time they executed the treasurer’s bond.

(3) The sureties contend that they cannot be held, in any event, for the amount received as partial payments on account, of personal property taxes for an amount exceeding “about $700,” as that was the amount agreed upon in the contract entered into between them and the county.

(4) The sureties claim that they should also be allowed, for errors in accounting and overpayments, the sum of $218.35.

(5) That the referee erred in not finding upon all the issues in the case.

The county, on its appeal, contends:

(1) That the referee’s sixth finding of fact, which finds that the treasurer received in partial payments during his first term $1,090.70, should have been accepted and approved, and that the order of the court reducing the same to $631 should be set aside.

(2) That the seventh finding of fact of the referee, which finds a credit for overpayments in favor of the treasurer to the amount of $316.82, and which was approved by the trial court, should be disapproved, vacated, and set aside.

(3) That the sum of $1,848.27, found by the referee to have been received by Tunley and not lawfully paid out by him, should measure the liability of the sureties, and is the amount for which the county...