F. Kuhl v. Pierce County

• Decision Date: 04 April 1895
• Docket Number: 6062
• Citation: F. Kuhl v. Pierce County, 62 N.W. 1066, 44 Neb. 584 (Neb. 1895)
• Parties: F. KUHL ET AL. v. PIERCE COUNTY
• Court: Nebraska Supreme Court

62 N.W. 1066

44 Neb. 584

F. KUHL ET AL. v. PIERCE COUNTY

No. 6062

Supreme Court of Nebraska

April 4, 1895

ERROR from the district court of Pierce county. Tried below before KINKAID, J.

REVERSED AND REMANDED.

C Hollenbeck, for plaintiffs in error:

There is no privity of interest between the sureties on the first and second bonds. The liability incurred by a surety on an official bond is for the term for which the officer was elected, and the courts have universally held that the liability of a surety on such bond is to be strictly construed according to the terms of the bond. (Murfree Official Bonds, sec. 731.)

There is no trust, express or implied, in the office of county treasurer. His liability for the funds in his hands, or received by him in his official capacity, is absolute and unconditional. It is his duty to collect money and pay it over in the manner provided by law. This duty is strictly legal. He cannot evade it or excuse himself in any way for a non-compliance with it. If the money is stolen or destroyed through no act of his, he cannot be heard in defense to show acts of care or diligence for the purpose of escaping liability. He is an insurer of money in his hands. (Murfree Official Bonds, sec. 694; State v. Harper, 6 Ohio St. 607; Commonwealth v. Comly, 3 Pa. 372; United States v. Prescott, 44 U.S. 578; Muzzy v. Shattuck, 1 Denio [N. Y.], 233.)

If the remedy in this action is purely legal then this action ought not to have been referred, and the court had, in that case, no authority to appoint a referee over the objection of the plaintiffs in error. (Mills v. Miller, 3 Neb. 87; Kinkaid v. Hiatt, 24 Neb. 562.)

The causes of action were improperly joined. (Cassady v. Board of Trustees, 93 Ill. 394; Screwmen's Benevolent Association v. Smith, 7 S.W. [Tex.], 793; Oglesby's Sureties v. State, 11 S.W. [Tex.], 873.)

Discovery has ceased to be one of the objects sought by courts of equity. (Lamaster v. Scofield, 5 Neb. 148.)

Where an officer holds two successive terms of office and is a defaulter, the presumption of law is that such defalcation occurred during his last term of office. (Kelley v. State, 25 Ohio St. 567; Morley v. Town of Metamora, 78 Ill. 394.)

Powers & Hays, also for plaintiffs in error.

W. W. Quivey and Allen, Robinson & Reed, contra, cited: State v. Churchill, 3 S.W. [Ark.], 352; Bruce v. United States, 17 How. [U. S.], 437.

OPINION

See opinion for statement of the case.

RAGAN, C.

At the general election held in November, 1887, one Carl Korth, was duly elected treasurer of Pierce county. He qualified by giving bond and entering upon the discharge of his duties. The plaintiffs in error (hereinafter called the "sureties") signed Korth's official bond as treasurer for the term for which he was elected and which expired on the first of January, 1890. At the November election, 1889, Korth was again elected treasurer of Pierce county for two years and again qualified and entered upon the discharge of his duties for the second term commencing January 1, 1890. A large number of parties became sureties on his official bond for his second term of office. None of the plaintiffs in error, the sureties, were signers of the second bond. On the 18th of December, 1890, Korth resigned and was found to be a defaulter, and this action was brought by Pierce county to the district court against Korth and all the sureties on both his bonds. The petition contained the necessary averments of the election of Korth as treasurer of the county for two terms as aforesaid; his acceptance of the office for each of said terms and his giving bonds to faithfully discharge the duties of his office, account for and pay over all moneys which should come into his hands as such treasurer during each of said terms of office. The petition then alleged that Korth did at various times during the time he held said office misappropriate large amounts of money and convert the same to his own use and that he was on the 18th of December, 1890, a defaulter in the sum of $ 35,517.41, which sum he had neglected and refused to account for and pay over to the proper authorities; that Korth had resigned the office of treasurer and that he was wholly insolvent. The petition then alleged that the county "is unable to prosecute an action at law on either of said obligations for the reason that the books, papers, and records of said * * * treasurer * * * as compiled and made by said defendant Korth during the term that he exercised the duties and functions of said office, * * * and as said books now appear do not disclose and show wherein the said defalcation occurred, nor is there any record or evidence known to plaintiff whereby plaintiff can in any action at law show whether said defalcation occurred during the period of time covered by said first obligation or during the period of time covered by said second obligation." The prayer of the petition was that an accounting in equity might be had, to the end that it might be adjudged and decreed when the several misappropriations and conversions of money occurred, the amounts thereof, and for what amounts of the defalcation the sureties on the first and second bonds were respectively liable. The sureties demurred to this petition on the ground that the petition did not state facts sufficient to entitle the county to equitable relief. The signers or sureties on the second bond submitted a similar demurrer. These demurrers were by the court overruled and the "sureties" and the signers of the second bond answered. The answers among other defenses alleged that the petition did not state facts sufficient to entitle the plaintiff to equitable relief. No reply appears to have been filed by the county. After the issues were thus made up the sureties, and the signers of the second bond as well, demanded a jury trial, which was denied by the court, and on motion of the county the case was referred to a referee "to take the evidence and report the facts and evidence to this court." This order was made against the objection and exceptions of the sureties and the signers of the second bond as well. In due time the referee heard the evidence, made his findings of fact and reported the same, and on the 13th of October, 1892, the district court overruled the exceptions filed to the report of the referee and denied the motions for a new trial and entered three judgments as follows: (1) a judgment against Carl Korth only for $ 37,777.40; (2) a judgment against the sureties only for $ 14,544.18; (3) a judgment against the signers of the second bond only for the sum of $ 23,233.22. Carl Korth has neither appealed from the judgment rendered against him nor filed in this court any petition in error to reverse the same. Such judgment, therefore, is not before us for review. Whatever conclusion may be reached in the matter under consideration here must be taken and understood as neither reversing, vacating, modifying, nor in any manner affecting the said judgment rendered in favor of Pierce county against Carl Korth. The signers of Korth's second bond have filed in this court a petition in error praying for a reversal of the judgment rendered by the district court against them; but as the judgment was rendered on the 13th of October, 1892, and their exceptions to the referee's report and their motion for a new trial overruled at the same time; and as they did not file in this court their petition in error until the 14th of January, 1895, we are precluded from reviewing the judgment rendered against the signers of the second bond. Hence, the conclusion reached in the matter before us must be taken and understood as not reversing, vacating, modifying, or in any manner whatever as affecting the judgment rendered by the district court of Pierce county in this action against the signers of the second bond. To reverse the judgment of the district court against the signers of Korth's first bond, the sureties, in due time, filed in this court a petition in error, and this judgment is the only one before us for review.

The county has submitted a motion in this court to dismiss the petition in error of the sureties. The only ground of which motion that we deem it necessary to notice is that all the parties to the judgment against the sureties in the district court are not parties to the petition in error filed here for its reversal. The only defendant in error is the county of Pierce. The plaintiffs in error are the signers only of the first bond. The contention is that Carl Korth and all the signers of the second bond should be made parties plaintiffs in error or parties defendant to the proceeding instituted in this court by the sureties to reverse the judgment of the district court against them. If the judgment which the sureties seek to reverse here was a joint and several judgment, not only against them, but against Carl Korth and the signers of his second bond as well, then the motion of the county would be well taken. The rule of this court is "All the parties to a joint judgment are necessary parties to a petition in error filed here by one of their number to reverse it." (Wolf v. Murphy, 21 Neb. 472, 32 N.W. 303; Curten v. Atkinson, 29 Neb. 612, 46 N.W. 91; Consaul v. Sheldon, 35 Neb. 247, 52 N.W. 1104.) In Andres v. Kridler, 42 Neb. 784, 60 N.W. 1014, the rule was again under consideration, and the court held: "Where only a part of several defendants, against all of whom a joint judgment has been rendered, file a petition in error for the purpose of procuring the vacation of such judgment, and the judgment defendants, who have not joined in the petition in error, are not made defendants in error, there exists such defect of parties that the judgment complained of cannot be reviewed." The question...