Gonser v. State ex rel. Haskins

• Decision Date: 17 December 1902
• Citation: Gonser v. State ex rel. Haskins , 30 Ind.App. 508, 65 N.E. 764 (Ind. App. 1902)
• Parties: GONSER et al. v. STATE ex rel. HASKINS et al.
• Court: Indiana Appellate Court

30 Ind.App. 508

65 N.E. 764

GONSER et al.

v.STATE ex rel. HASKINS et al.¹

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1902.

Appeal from circuit court, Steuben county; E. D. Hartman, Judge.

Action by the state, on the relation of David Haskins, trustee, against Moses Gonser and others.Judgment for plaintiff, and Moses Gonser and other defendants appealed to the supreme court, from which it was transferred.Affirmed.

Woodhull & Yeagley and Powers & Wood, for appellants.Best, Bratton & Yotter, for appellees.

HENLEY, J.

This was an action on two official bonds executed at different times by one Monroe F. Wright as township trustee of Salem township.The first of these bonds was executed on the 5th day of August, 1894, at the beginning of the trustee's term of office; was signed by the trustee as principal, and Moses Gonser, Artemus Allen, and Henry Wright as his sureties.On the 6th day of July, 1897, Gonser and Allen, upon their application therefor, were, by order of the judge of the Steuben circuit court, discharged from further liability on said bond; and on the same day the said trustee executed a new bond, with Henry Wright and appelleesJohn Tritch and D. Frank Dreher as his sureties thereon.Afterward, on the 23d day of February, 1900, said trustee abandoned his office and fled from the state of Indiana, leaving a shortage in his accounts in the sum of $1,400.David Haskins, the successor of the defaulting trustee, commenced this action against the two sets of sureties to recover the amounts due the township by reason of such default.The first paragraph of the complaint was based upon the original bond filed at the beginning of the term of the defaulting trustee.The second paragraph of the complaint was based upon the bond filed after the release of appellants Gonser and Allen.In each paragraph of the complaint the various amounts of money received by the defaulting trustee of the township are specifically set out, and it is charged that the said trustee unlawfully refused to pay out or expend said money for the use of his township, and converted the same to his own use, and refused to account therefor, or to pay the same over to his successor in office.An answer in general denial was filed by each of the defendants, and it was agreed by the parties that all defenses might be proven under the general denial.The cause was tried by the court without a jury, facts were specially found, and conclusions of law stated thereon.Counsel for appellee have carefully and briefly stated the material parts of the special finding of facts in their brief.The court found that the defaulting trustee owed the township $1,400, and that he was in default at the time the second bond was executed in the sum of $800, and that the remainder of the $1,400 was defaulted after the execution of the second bond.It was further found that on the 9th day of May, 1896, the said Monroe F. Wright borrowed from one Samuel Lepley the sum of $800, and executed therefor, as trustee of Salem township, a township warrant; that the said Monroe F. Wright never at any time charged himself with the sum received from Samuel Lepley, nor did he credit the township therewith; that he did not at any time charge himself with, or give his township credit for, the $800 borrowed from the said Samuel Lepley, in any report made by him as such trustee to the board of commissioners, nor was said amount so borrowed by him reported to the said board, and on the 10th day of June, 1896, said trustee drew a large sum of money from the county treasurer, to wit, $2,197.90, but used no part of the same for the payment of the township note he had given to Lepley for the $800 borrowed from him, but the said trustee retained out of the funds received by him as aforesaid the sum of $800, and used the same for his own private use and purposes.We think it clearly appears from the special finding that the sum of $800 of the township's money had been, before the execution of the second bond, converted to the use of the township trustee, so that as to that amount he was clearly in default.He had in his possession, and had converted to his own use, the $800.He had...