Holt Cnty. v. Scott

• Decision Date: 22 December 1897
• Citation: 53 Neb. 176,73 N.W. 681
• Parties: HOLT COUNTY v. SCOTT ET AL.
• Court: Nebraska Supreme Court

53 Neb. 176

73 N.W. 681

HOLT COUNTY

v.SCOTT ET AL.

Supreme Court of Nebraska.

Dec. 22, 1897.

Syllabus by the Court.

1. By Comp. St. c. 10, § 21, a county board is empowered, according to circumstances, to require the treasurer either to give an additional bond, or to give additional sureties on the subsisting bond.

2. Sureties executed a county treasurer's bond with the above provision in contemplation, and forming a part of their contract, and they are not released from liability on the bond by the board's requiring additional sureties.

3. It is not error to exclude from evidence a written instrument, the making and contents whereof are admitted by the pleadings.

4. To entitle one elected to an office requiring an official bond to be inducted into office, his bond must be approved and filed for record before his induction, and within the time fixed by statute.

5. While the rule last stated prevails in actions in which it becomes necessary for the claimant of the office to prove his strict legal title to the office to show that he is the officer de jure, such as actions of quo warranto, or to recover the fees from a party who, during the term for which the officer was elected, held the office as a de facto officer, and received such fees, in actions on official bonds for alleged breaches of the conditions thereof a very different doctrine prevails and is applicable.

6. The requirements of the statutes in regard to approval of official bonds is for the benefit and convenience of the public, and not directly for the treasurer or his sureties; and, where the bond has been executed and delivered within the time prescribed by the law, though not approved, or not until a date after the time prescribed, and by virtue of the bond and its delivery the treasurer has obtained possession of the office, and received the fees and emoluments thereof, the sureties cannot escape liability for any breaches of the conditions of the bond by their principal, because the bond was not approved, or not so until a date without the time prescribed by law.

7. The official bond of a county treasurer, with the oath indorsed thereon, was filed within the statutory limit for such act. It had not then been approved, and was not approved until a date beyond the limit prescribed. He entered upon the duties of the office, and during the time he continued therein received the fees and emoluments appertaining thereto. In an action on the bond for an alleged breach of its conditions, held, that the fact of the lack of approval at the time prescribed by law was not matter of forceful defense for the sureties on the bond.

8. One who holds and performs the duties of an office, and receives the fees and emoluments thereof, by virtue of an election or appointment thereto, or under color of right, is a de facto officer, and not a mere intruder.

9. A person who was holding the office of county treasurer, and was re-elected, or elected for a second and the succeeding term, filed a bond, with the oath of office indorsed thereon, within the time fixed by law. The bond then, however, lacked approval, and was not approved until a date without the time fixed by law for such action. The treasurer continued in the office. Held, that he was in the office as of the new term under color of right, and was an officer de facto, and the sureties on the bond were precluded or estopped from denying that he was in possession of the office of the second term and de jure.

10. The fact that an official bond has been approved does not of itself constitute or evidence the delivery and acceptance of the bond.

11. Quære: Are approval, taking and subscribing the oath of office, indorsed on the bond, and its filing for record constituent elements of its delivery, the filing being the dominant one; and if it is within the limit of time prescribed by statute, and the approval of a later date, and beyond that of the limit, does the approval relate back to the filing?

12. The decision in the case of Cutler v. Roberts, 7 Neb. 4, examined and distinguished.

Error to district court, Holt county; Chapman, Judge.

Action by the county of Holt against Barrett Scott as principal and others as sureties on a bond. There was judgment against Scott and for the sureties, and the county brings error. Reversed.

Irvine, Ryan, and Ragan, CC., dissenting.C. J. Smyth, Atty. Gen., Ed. P. Smith, Dep. Atty. Gen. H. E. Murphy and M. F. Harrington, for plaintiff in error.

E. M. Bartlett, John C. Watson, H. M. Uttley, R. R. Dickson, J. H. Ames, and E. F. Pettis, for defendants in error.

HARRISON, J.

This action was instituted for the county of Holt on what was claimed to be the bond of Barrett Scott as treasurer of said county. It was alleged in the petition that at a general election held on a stated day of November, 1891, Barrett Scott was duly elected county treasurer of Holt county for the term of two years, the term having its inception on the first Thursday after the first Tuesday of the month of January, 1892; that on the 29th day of December, 1891, Barrett Scott, as principal, and his co-defendants, as sureties, executed and delivered the bond in suit, and that the principal on the same day was duly qualified, or took the oath of office. It was further averred that the bond was approved March 1, 1892; that Scott, on the day designated by law for the commencement of the term of office of county treasurer, assumed such office, and entered upon the discharge of the duties thereof, in which he continued until August 18, 1893, on which date the office was assumed by one R. J. Hayes, who had been duly appointed Scott's successor. The default alleged, or breach of the conditions of the bond, was that the principal therein had failed to account for and pay over and had converted funds of the county which he had received as its treasurer in the sum of $90,000. There was an answer filed for the principal in the bond, but against him the county recovered a judgment, of which there is no complaint here, and his plea may be passed without further notice. The co-defendants, the sureties, all joined in a plea of their defenses, except Joseph S. Bartley, for whom there was filed a separate answer. The answer of all the sureties except Bartley admitted the allegation of the petition relative to the election of Barrett Scott to the office of county treasurer of Holt county, and it was alleged for each of these answering defendants that Barrett Scott, soon after his election, prepared and presented to them, respectively, a bond similar to the one declared upon in the petition in the action, and requested them to sign the same as his sureties, with which request they complied of date December 17, 1891, and then delivered the instrument to the principal therein; that Barrett Scott had been and was during the term terminating in January, 1892, the county treasurer of Holt county, and his selection for the office at the election in November, 1891, entitled him to become his own successor, and it was of the duties of the county board to approve any bond he might present prior to the inception of the term of office, if approved at all, and before approval to require and compel an accounting for and production of all funds in his hands as treasurer, or with which he was then chargeable; that the board wholly failed to perform its duty in either particular, which operated to discharge the answering defendants, since they had executed the bond with a full reliance on the strict performance by the board of such duties; and, further, that the failure to approve the bond before the time by law fixed for the commencement of the term of office operated a vacancy of the office; also, if said bond ever became of effect, Barrett Scott was ordered, on the 4th of March, 1892, removed from the said office, and a vacancy in said office declared to exist, and, if any responsibility had attached to defendants by reason of their executing the bond, it then wholly ceased. It was further averred that the board, with full knowledge that Barrett Scott had failed to account for the funds received during his first term as county treasurer, had not compelled an accounting, but had wholly failed so to do, allowing him to retain the office, perform its duties, and collect moneys, and on March 1, 1892,--long after the proper time for such action,--fraudulently approved the bond, with the intention then entertained of thereby rendering the defendants responsible for the past acts of the principal in the bond. The answer of Bartley, in addition to pleas similar to those contained in the pleading of his co-defendants, alleged that at some date in the month of February, 1892, the county board had a pretended accounting with Barrett Scott, at which certain moneys and property were produced and represented as belonging to Holt county, which in truth and in fact were not the moneys and property of said county,--all of which facts were then known by the board; and that, regardless of such facts, and its knowledge thereof, the board, on March 1, 1892, approved the bond; that the defendant signed the bond in good faith, and in ignorance of the facts set forth in this portion of his plea, and also of the further fact that Barrett Scott had not fully adjusted the accounts and charges of his first term; that in so signing the bond the defendant relied on the county board to compel the proper adjustment of the accounts and charges of the prior term of office of the treasurer, which duty was wholly neglected and purposely disregarded by the board. It was also of Bartley's answer that during the month of July, 1892, the board, without the knowledge or consent of the answering defendant or his co-defendant sureties, procured two persons to then sign said bond as additional sureties (the persons so signing are not parties to this suit); that such signing constituted a material alteration of the bond, and operated a release of defendants from...