Ferry v. King County

• Decision Date: 06 April 1891
• Citation: 2 Wash. 337,26 P. 537
• Parties: FERRY ET AL. v. KING COUNTY ET AL.
• Court: Washington Supreme Court

26 P. 537

2 Wash. 337

FERRY ET AL. v. KING COUNTY ET AL.

Supreme Court of Washington

April 6, 1891

Error to district court, King county.

Burke & Haines, for plaintiffs in error.

Ronald & Piles and W. S. Bush, for defendants in error.

ANDERS, C.J.

This was an action by defendant in error King county against George D. Hill and his sureties upon his official bond as county treasurer of said county, to recover a specified sum of money alleged to have been received by said Hill, as such treasurer, for the use of said county, during his official term of two years, commencing on the first Monday in January 1881, but which he failed to account for to the proper authorities, or to pay over to his successor in office, as required by law. The cause was tried by a referee, who having heard the testimony, reported the same, together with his findings of fact and conclusions of law, to the court. The referee found, in substance, that the said George D. Hill was the duly-elected, qualified, and acting treasurer of the county of King for the term of two years from and after the second Monday of January, 1881; that he, as principal, with the other defendants as his sureties, duly executed the bond set forth in the complaint; that he attended before the board of county commissioners of said county with his books and vouchers, and made settlement of his accounts with said board, as required by law, for and during his said term of office, and received the credits in his several accounts mentioned in the answers of the defendants in this action that during his term of office as such county treasurer, and while acting as such, he had and received, for the use of said county of King, divers large sums of money, amounting in the aggregate to the sum of $190,297.02; that he did not account to the proper authorities for all the money so received by him; that of the money so received by him for the use of said county he did not account to the proper authorities for, and did not pay over to his successor in office, the sum of $12,472.16, and that said failure to account for and to pay over to his successor in office said last-named sum was occasioned by, and was the result of, mistakes and errors on the part of said Hill and the county auditor of said King county in the book accounts kept by them, respectively, and of mistakes and errors on the part of the board of county commissioners of said county in the settlements had by them with said Hill on account of the money so by him received as treasurer for the use of said county. The said report of the referee also specifies the particular accounts in which the said mistakes and errors occurred, but which it is not necessary here to enumerate. And as a conclusion of law deduced from the facts set forth the referee found that the plaintiff, the county of King, was entitled to a judgment against the defendants for the sum of $12,472.16, with interest thereon from the _____ day of January, 1883, at the rate of 10 per cent. per annum together with the costs and disbursements of the action. The defendants filed a motion to set aside the report of the referee, and for a new trial, which motion was denied by the court. Judgment was thereupon entered for the plaintiff in accordance with the referee's report, to reverse which defendants have brought the cause to this court by writ of error.

Eleven different errors, alleged to have been committed by the court below, are assigned by plaintiffs in error as grounds for reversal of the judgment. The first 10 specifications of error refer almost exclusively to the rulings of the court in settling the pleadings in the case. They are not discussed in the brief of counsel for plaintiffs in error, and therefore might properly be treated as waived; but we have nevertheless examined the record touching these objections, and are unable to perceive any substantial error therein. The eleventh assignment is that the court erred in denying the motion of defendants to set aside the report of the referee, and to grant a new trial. Our statute provides that upon a motion to set aside the report of a referee the conclusions thereof shall be deemed and considered as a verdict of the jury, (see Code, § 256;) and in no case will such report be set aside except for reasons which would make it the clear duty of the trial judge to set aside a verdict and order a new trial. There is neither a bill of exceptions, nor the evidence given before the referee, in the record in this case, and we can therefore only consider the legal effect of the facts found by the referee. And we must assume, in the absence of the evidence, not only that the facts found are true, but also that the evidence warranted the findings. Gardiner v. Schwab, 110 N.Y. 650, 17 N.E. 732. We are of the opinion that the facts found fully justify the conclusions of law arrived at by the referee, and we cannot say that the court erred in refusing to...