Hall Cnty. v. Thomssen

• Decision Date: 06 February 1902
• Citation: 63 Neb. 787,89 N.W. 393
• Parties: HALL COUNTY v. THOMSSEN ET AL.
• Court: Nebraska Supreme Court

63 Neb. 787

89 N.W. 393

HALL COUNTY

v.THOMSSEN ET AL.

Supreme Court of Nebraska.

Feb. 6, 1902.

Syllabus by the Court.

1. Under the terms of the statute providing for the depositing of public funds by the county treasurer in depository banks, a depository bond of such bank is a continuing liability, which can be discharged only by the paying out of the funds deposited on account of the giving of the bond.

2. An outgoing county treasurer delivered to his successor two checks in lieu of cash, aggregating $10,000, and covering that sum of money deposited in a bank which had qualified under the law as a depository of county funds. and took such checks to the bank and had them certified, instead of drawing out the cash, after which the bank failed. Held, that this transaction did not amount to a redeposit of the funds as a general deposit, and that the liability of the bank upon its depository bond continued.

Commissioners' opinion. Department No. 1. Error to district court, Hall county; Sedgwick, Judge.

Action by Hall county against William Thomssen and another. Judgment for defendants. Plaintiff brings error. Affirmed.Chas. G. Ryan, W. S. Pearne, and R. R. North, for plaintiff in error.

W. H. Thompson and O. A. Abbott, for defendants in error.

KIRKPATRICK, C.

This is an action brought in the district court of Hall county against William Thomssen and the Fidelity & Deposit Company of Maryland, a corporation. The action was upon the bond of Thomssen as county treasurer, upon which the Fidelity & Deposit Company was surety. The petition pleaded the election of Thomssen as county treasurer, and the execution, delivery, and approval of his bond, a copy of which was set out in the petition, and prayed judgment against the defendants for $21,985.61,--the amount of Thomssen's alleged shortage. The defendants answered separately, and, among other matters, alleged that, prior to the commencement of the term of William Thomssen as treasurer, the Bank of Commerce of Grand Island had given bond to the county, and had become a depository of county funds to the extent of $10,000, which amount in county funds had been deposited therein by the predecessor of Thomssen, and that said $10,000 was part of the alleged shortage mentioned in the petition, and that said $10,000 had never been drawn out of the Bank of Commerce by Thomssen, and that the same still remained therein, and that William Thomssen and his bondsmen were not liable therefor. To this answer the county filed a reply alleging, in substance, that prior to the time that Thomssen entered upon the discharge of his duties as treasurer the Bank of Commerce had given bond to the county, and had become a county depository for a period of two years, or until January 1, 1896, and that the predecessor of Thomssen had deposited in said bank the sum of $10,000 of county funds; that Thomssen had received from his predecessor checks drawn on said deposit in the sum of $10,000 in lieu of cash, and that he presented said checks at the bank, and had them certified by the officer of the bank, and carelessly and negligently failed to get the cash on said checks, but carelessly and negligently permitted said money to remain in said bank until the 20th day of January, 1896, at which time the bank failed; that thereafter the receiver of said bank paid on said deposit $4,000, and no more, leaving a balance due from Thomssen to the county of $6,000. To this reply separate demurrers were interposed by the defendants in error, which were by the trial court sustained; and, the plaintiff in error electing to stand upon its reply, judgment was entered against it, to reverse which the cause is brought to this court upon error,--this being another branch of the case of Thomssen v. Hall Co. (No. 11,162; decided at this term) 89 N. W. 389.

It is contended by plaintiff in error that the effect of William Thomssen's taking the checks representing the $10,000 on deposit, from his predecessor in office, to the bank, and having them certified, was to withdraw the money from the county depository, and redeposit it...