Foster v. State ex rel. City of Huntington

• Decision Date: 07 June 1899
• Citation: 22 Ind.App. 471,53 N.E. 1095
• Parties: FOSTER et al. v. STATE ex rel. CITY OF HUNTINGTON.
• Court: Indiana Appellate Court

22 Ind.App. 471

53 N.E. 1095

FOSTER et al.

v.STATE ex rel.

CITY OF HUNTINGTON.

Appellate Court of Indiana.

June 7, 1899.

Appeal from circuit court, Huntington county; J. W. Adair, Special Judge.

Action on city treasurer's bond by the state, on the relation of city of Huntington, against Charles Foster and others. There was a judgment for the city, and defendants appeal. Affirmed.

R. A. Kauffman, B. M. Cobb, and Robert Lowry, for appellants. France & Dungan, for appellee.

ROBINSON, J.

Transferred from the supreme court. Suit on a city treasurer's bond. Upon a special verdict by the jury, judgment was rendered in the city's favor for $2,747.51. The action of the court in giving judgment in appellee's favor on the special verdict is the only question discussed by appellants' counsel. John M. Hargrove was elected to and held the office of city treasurer of Huntington, Ind., four consecutive terms, the last beginning on the first Monday in September, 1892, and ending the first Monday in September, 1894. It is shown that on the 1st of September, 1892, he had in cash and securities a sum equal to the amount he was then chargeable with as city treasurer, and had in cash $5,948.79; that on September 3d, 1894, he had cash on deposit $40,097.09, and on September 4th he paid the treasurer of the school board $6,075, and September 1st paid out $122.50; that there was in his hands as such treasurer, belonging to the city at the close of his term of office, September 4, 1894, the sum of $33,899.59; that he had on deposit September 1, 1892, in funds belonging to the city, $8,672, and had $716.36 in his hands not on deposit; that he was charged with the sum of $9,376.37 on the first Monday in September, 1892; that he received during his last term $185,970.91,-making a total with which he was chargeable of $195,347.28; and that he paid out during that term $156,672.32, leaving a balance of $38,674.96. The jury found in answer to an interrogatory that at the time he went out of office he owed the city $38,664.43; that he paid over at the close of his term of office, and during the four months following, $36,294.32, leaving the amount due the city $2,370.20, the interest on which was $377.41, making a total of $2,747.61, which the jury found was due the city, and for which sum judgment was rendered.

It will be seen that the jury place the total amount he had on hand when he took office at $9,388.36, and they also say that he was chargeable only with $9,376.37, and they also find from his reports that the balance in his hands when he went out of office was $38,674.96, and that when he went out of office he owed the city $38,664.43. These show a slight discrepancy in the figures set out in the verdict; but it is seen that in the final result reached by the jury appellants have the advantage of the difference, and in fact appellants' counsel have not discussed the matter in their brief.

Interrogatory 136 and answer were as follows: “How much money was in the hands of J. M. Hargrove, as such treasurer, belonging to the city of Huntington at the close of his term of office, September 4, 1894? Ans. $33,899.59.” “106. Was the aggregate sum paid by the defendant Hargrove by himself and deputy, after O. S. Bey [his successor in office] took possession of said office as city treasurer, $36,294.33? Ans. Yes.” “108. Was the sum of $36,294.33 paid by said Hargrove and his deputy to O. S. Bey, city treasurer, before the commencement of this suit? Ans. Yes.” It is argued that the answer to interrogatory 136 must be construed to mean the amount due the city at that time. It is true that ordinarily the language used would be so construed. But it would not necessarily be so construed. The jury may have meant, and, when taken in connection with other interrogatories, they evidently did mean, that that sum was all of the city's money he then actually had. They found that when he went out of office he owed the city $38,664.43, and that he turned over to his successor $33,899.59, and about two months later he paid the further sum...