Dillingham v. Hook

• Decision Date: 13 June 1884
• Citation: 32 Kan. 185,4 P. 166
• Parties: N. H. DILLINGHAM v. ENOS HOOK, et al
• Court: Kansas Supreme Court

4 P. 166

32 Kan. 185

N. H. DILLINGHAM v. ENOS HOOK, et al

Supreme Court of Kansas

June 13, 1884

Error from Leavenworth District Court.

ACTION by N. H. Dillingham against Enos Hook, upon his bond as treasurer of Leavenworth county, and the sureties thereon. Judgment for the defendants at the December Term, 1883. Plaintiff brings the case here. The material facts appear in the opinion.

Judgment affirmed.

L. B Wheat, and J. D. Shafer, for plaintiff in error.

Lucien Baker, and William C. Hook, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Plaintiff commenced his action against the defendants to recover the sum of $ 10,120, upon the official bond of Enos Hook, as treasurer of Leavenworth county, and alleged in his petition among other things, that he was the owner of five court-house bonds, each of the denomination of $ 1,000, executed on June 1, 1873, by the county of Leavenworth, and payable June 1, 1883; that on said last date and and again on September 26, 1883, he presented to Enos Hook, as such county treasurer, at his office in the county of Leavenworth, the said bonds, and demanded payment thereof; that said Hook then paid on one of said bonds the sum of $ 121.97, but refused to pay any other sum; that on October 12, 1883, he again presented the bonds for payment at the Importers and Traders National Bank in New York city, and also at the bank of Donnell, Lawson & Simpson, the fiscal agency for the state of Kansas in said city, and demanded payment thereof; that payment at each of said places was refused; that at the said dates the said Hook had in his hands and under his control $ 24,338.61, of the moneys of Leavenworth county, levied and collected to pay the said court-house bonds of said county.

The plaintiff further alleged in his petition, that said Hook did not remit to the fiscal agency of the state of Kansas in the city of New York, nor to any other bank or agency in said city, fifteen days before the 1st or 4th of June, 1883, or before the maturity of said bonds, or at any other time, any moneys for the redemption of the said bonds, but on the contrary, neglected and refused to remit to the state agency in New York city any moneys, and thereby neglected and refused to perform the duties imposed upon him by the act of the legislature of the state, entitled "An act to provide for the establishment of a fiscal agency for the state of Kansas in the city of New York, and prescribing the duties of officers in relation thereto," approved March 6, 1874. The defendant, Hook, filed a motion requiring the plaintiff to separately number and state his several pretended causes of action. This motion was sustained to the extent that the plaintiff was required to separately state and number the matters set forth in his petition as two causes of action. Afterward the plaintiff, to comply with the order of the court, filed a new or amended petition, and for a second cause of action stated that the said Enos Hook neglected and refused to perform the duties imposed upon him by the act of the legislature of the state of Kansas, entitled "An act to provide for the establishment of a fiscal agency for the state of Kansas in the city of New York, and prescribing the duties of officers in relation thereto," approved March 6, 1874, whereby and because of the matters and things stated in the petition, the said Hook and the other defendants had become liable to the plaintiff in a sum double the amount of the bonds mentioned in the petition, to wit, the sum of $ 10,120. Thereupon, Hook filed a motion to strike from the files of the court the petition as corrected, and also filed a demurrer to the second cause of action set out in the petition as amended, upon the ground that it did not state facts sufficient to constitute a cause of action. The other defendants also filed their demurrer to the second cause of action, for a like reason. Subsequently the defendant, Enos Hook, filed a further demurrer, alleging that there were several causes of action improperly joined in the amended petition. The court overruled the motion to strike from the files the petition as corrected, but sustained the several demurrers of the defendants. Thereafter the defendants filed their answer to the first cause of action alleged in the petition, and the plaintiff filed his reply thereto. To the action of the court in requiring the plaintiff to amend his petition, and in sustaining the demurrers, the plaintiff excepted, and brings the case here.

The bonds were executed and delivered in 1873. The fiscal-agency act was passed in 1874, and took effect March 19, 1874. The principal question in this case therefore is, whether the fiscal-agency act is applicable to the bonds in controversy; in other words, was Enos Hook, as treasurer of Leavenworth county, required by that act to remit to the state agency of Kansas in New York, fifteen days before the maturity of the bonds described in the petition, of the moneys of Leavenworth county in his possession as treasurer, sufficient thereof for the redemption of the bonds, and in addition thereto, the commission prescribed by the statute for the disbursement of the money so transmitted? Section 3 of that act reads:

"From and after the passage of this act, the state treasurer and all county, township and city treasurers, are authorized and...