Holt County Bank v. Holt County

• Decision Date: 17 February 1898
• Docket Number: 7873
• Citation: 74 N.W. 259,53 Neb. 827
• Parties: HOLT COUNTY BANK ET AL. v. HOLT COUNTY
• Court: Nebraska Supreme Court

74 N.W. 259

53 Neb. 827

HOLT COUNTY BANK ET AL. v. HOLT COUNTY

No. 7873

Supreme Court of Nebraska

February 17, 1898

ERROR from the district court of Holt county. Tried below before BARTOW, J. Affirmed.

AFFIRMED.

H. M Uttley and R. R. Dickson, for plaintiffs in error.

M. F Harrington and H. E. Murphy, contra.

OPINION

RAGAN, C.

The Holt County Bank in March, 1892, was a banking corporation organized under the laws of the state and domiciled at O'Neill, in said Holt county. On that date it became a depository of county and public moneys in pursuance of the provisions of chapter 50, Session Laws of 1891, and executed a bond for the safe-keeping and repayment of all moneys received by it as such depository from the county treasurer of said county. Holt county brought this suit in the district court thereof against the bank and the sureties on its depository bond to recover a sum of money which it had received under the depository law and under its bond and had not paid over and accounted for to the treasurer of Holt county on his demand therefor. It had a verdict and judgment, and Adams, McBride, and Dwyer, sureties on the depository bond, bring that judgment here for review on error.

1. The first argument is that the petition does not state a cause of action. This argument is based upon counsel's contention that a copy of the depository bond sued on must be attached to and filed with the petition. Section 124 of the Code provides: "If the action * * * be founded on * * * a * * * written instrument as evidence of indebtedness, a copy thereof must be filed with the pleading." The plaintiff in this case did not attach a copy of the depository bond to its petition as an exhibit or otherwise, but copied the entire bond into the petition and made it an integral part thereof. This of course was not a literal compliance with the provisions of the Code, but the petition did not fail to state a cause of action simply because the bond was copied into, and made a part of, the petition, instead of being attached thereto as an exhibit. Ryan v. State Bank, 10 Neb. 524, 7 N.W. 276, was a suit upon the official bond of a county officer. It was there claimed that the petition was demurrable because no copy of the bond sued on was attached to it; but the court said that the objection was untenable; that a failure to attach to the petition a copy of the bond could not be reached by demurrer but by motion. Conversely. Pefley v. Johnson, 30 Neb. 529, 46 N.W. 710, was a suit on a written contract. In his petition the plaintiff alleged the making of the contract, "which is hereto attached and made a part hereof," but in his petition, aside from this exhibit, did not set out what the contract was nor the breach of it, and it was held in that case that...