Davis v. Dunlevy

• Citation: 11 Colo.App. 344,53 P. 250
• Parties: DAVIS et al. v. DUNLEVY, Clerk of Court.
• Decision Date: 09 May 1898
• Court: Court of Appeals of Colorado

53 P. 250

11 Colo.App. 344

DAVIS et al. v. DUNLEVY, Clerk of Court.

Court of Appeals of Colorado

May 9, 1898

Appeal from district court, Arapahoe county.

Action by Elias F. Dunlevy, as clerk, etc., against Robert M. Davis and others, as sureties on a bond. Judgment for plaintiff and defendant Davis appeals.

John T. Bottom and Mullahey & Rice, for appellant.

R.D Thompson, Ben B. Lindsey, and Fred W. Parks, for appellee.

WILSON J.

Plaintiff Dunlevy, while clerk of the county court of Arapahoe county was a depositor in the Rocky Mountain Savings Bank, a corporation doing a general banking business in the city of Denver. Before commencing to make deposits, he exacted and received from the bank a bond to secure the repayment of such deposits as he should make. The bond ran to him as clerk of the county court, and recited in terms that it was given for the purpose of securing such deposits as he might make, and protecting him and the sureties on his official bond from any loss by reason of making them. Defendant Davis was one of the sureties on this bond. After the bond was given, plaintiff made deposits in the bank at several times in varying sums. The bank failed, and at the time of its failure was indebted to plaintiff on account of deposits in the sum of about $3,000. To recover this, he instituted this suit on the bond given to secure the deposits. Judgment was rendered in his favor, and from this one of the defendants, a surety on the bond, appeals.

The main ground relied upon to secure the reversal of the judgment is that the bond sued upon was void because it was against public policy. It is claimed that the deposit was a loan to the bank, and as such was expressly prohibited by section 2 of a legislative act approved April 17, 1889, prohibiting, among other things, the loaning, with or without interest, by any public official, of any money in his possession or keeping, care or control, by virtue of his office. It is urged, also, that the county treasurer is the custodian of all funds received by any county official in the conduct of his office, and that all such officials, including the clerk of the county court, are required to turn such funds in to him for safe-keeping. We think it clear that the contention of appellant cannot be maintained. The questions raised have been already passed upon by this court, and determined. Moulton v. McLean, 5 Colo.App. 455, 39 P. 78. The opinion in that case substantially covers every question raised here, and the holding of the court was adverse to the position taken by defendant. It was there decided in reference to a county treasurer that: "Technically, all deposits made to banks are loans. The identical money is not to be returned, and the bank becomes the debtor to the amount of the deposit; but it is clear, as before stated, that it was not the intention of the legislature to prohibit the depositing of money in banks for convenience in safe-keeping." It is the using of public money by the officer for his own gain that is intended to be reached. It is the use of money by way of loans. The fact that the official acts involved in that case were those of a county treasurer does not change the principle of the law nor the character of the deposit. The same is true of every other county official who may, by virtue of his office, be entitled to receive, and does receive, any money. There is no contention that the plaintiff in this case was to receive, or did receive, any interest whatever upon these deposits. On the contrary, all of the evidence was to the effect that none was to be paid, and none was paid. Appellant seeks to sustain himself by assuming that these funds so deposited were received on account of fees of the office; that by express provision of the statute he was...