Hrabak v. Village of Dodge

• Decision Date: 18 September 1901
• Docket Number: 10,188
• Citation: 87 N.W. 358,62 Neb. 591
• Parties: CHARLEY HRABAK ET AL. v. VILLAGE OF DODGE
• Court: Nebraska Supreme Court

87 N.W. 358

62 Neb. 591

CHARLEY HRABAK ET AL. v. VILLAGE OF DODGE

No. 10,188

Supreme Court of Nebraska

September 18, 1901

ERROR from the district court for Dodge county. Tried below before MARSHALL, J. Affirmed.

AFFIRMED.

McNish & Oleson, for plaintiffs in error.

A. H Briggs, contra.

KIRKPATRICK C. HASTINGS and DAY, CC., concur. SULLIVAN, J., absent, not voting.

OPINION

KIRKPATRICK, C.

This is an action brought in the district court for Dodge county by the village of Dodge against Henry Hoetfelker, village treasurer, and Charley Hrabak, Anton Bartosh and Willits Hatton, his bondsmen. Henry Hoetfelker having absconded, no service was had upon him, and the action proceeded against the bondsmen alone. The village of Dodge, defendant in error in its petition against the defendants, alleged the election and qualification of Henry Hoetfelker as village treasurer, and that he entered upon the discharge of his duties as such treasurer, giving a bond to the village in the sum of $ 2,000, signed by plaintiffs in error as sureties. It was alleged in the petition that there was paid into the hands of Hoetfelker, as village treasurer, for the benefit of the school funds, $ 2,000 realized from saloon licenses; that he accounted for or paid over to the treasurer of school district No. 46, which was the school district comprised within the limits of the village of Dodge, $ 1,000, and that he had converted the remaining $ 1,000 of license moneys to his own use. As a second cause of action, defendant in error, the village of Dodge, pleaded that the village treasurer collected as taxes the sum of $ 834.44, accounting for $ 800.44, leaving a balance of $ 34 which he converted to his own use. Plaintiffs in error answered, admitting their liability under the second cause of action, and pleaded a tender in court for the use of the village of the sum of $ 34. The answer of plaintiffs in error to the first cause of action will require consideration later herein, and need not now be further referred to. Trial was had in the district court, which resulted in favor of the village, and plaintiffs herein prosecute error to this court.

Very many assignments of error are made, both in the motion for a new trial and in the petition in error; but in the brief filed by plaintiffs in error only four grounds for reversal are urged, and none other will be considered. The first two errors argued in briefs of counsel are substantially the same, and will be considered together. In substance they are that the moneys received from licenses to sell intoxicating liquors in the village should have been paid by the applicants for license direct to the county treasurer; that the village treasurer had no right or authority to receive or collect them, and that he did not receive them virtute officii, and for that reason plaintiffs in error are not liable on the official bond of the village treasurer for such moneys. The third error pointed out in the briefs is that the court erred in its rulings on the admission and exclusion of evidence. The fourth error complained of is the instruction of the court directing the jury to return a verdict for the village for the amount for which suit was brought.

To properly understand the case, it will be necessary to set out a portion of the answer filed by plaintiffs in error to the first cause of action pleaded in the petition of the village, which is as follows: "Your said answering defendants admit that they signed a bond for one Henry Hoetfelker in the manner and form as set forth in the third paragraph of plaintiff's amended petition. * * * That the said money so as aforesaid received by the said Henry Hoetfelker arising out of and from the granting of licenses to various persons by the authorities of said village of Dodge for the sale of malt, vinous and spirituous liquors, commonly called 'saloon licenses,' were not received by said Henry Hoetfelker by virtue of his being treasurer of the village of Dodge, but that in law and in fact the said Henry Hoetfelker, as such treasurer of the village of Dodge, had no right, power, or authority to receive and disburse said moneys for and on behalf of the said plaintiff nor of the school district to which said moneys belonged; and that said moneys belonged wholly and solely to the school district in which said licenses were granted, and that neither said plaintiff nor its representatives had any right, title or interest in said moneys or right to the possession thereof, nor to exercise any control over said moneys in any manner whatsoever; and that at this time the said plaintiff has no interest in said moneys, nor is it the owner thereof, nor any part thereof; and that said moneys alleged to have been paid to said Henry Hoetfelker, as stated in the first cause of action in said amended petition, were received by him without any authority whatever as village treasurer so as to bind your said answering defendants upon their said bond of the said Henry Hoetfelker for the faithful performance of his said official duties, and that a failure to disburse any of such moneys that might be received by him would not constitute a breach of the conditions of the bond set forth in said first cause of action in plaintiff's petition, and that your said answering defendants would not be liable thereon by reason thereof; that your said defendants, when they signed and executed the said official bond, so as aforesaid, contracted specially and with reference to the duties and obligations imposed upon the said Henry Hoetfelker by law, and that they never assumed any other or further obligations in the premises than those imposed upon them by reason of said bond and the laws of the state of Nebraska governing with respect to the duties and obligations of the said Henry Hoetfelker therein."

Plaintiffs in error, in answering to the second cause of action set out in the petition of defendant in error, among other things, say: "That your said defendants, answering with respect to the facts and allegations contained in said amended petition necessary to constitute a cause of action against your said answering defendants, and say that as to the said amount of $ 34 therein claimed to be due from the said Henry Hoetfelker as said village treasurer to the said plaintiff, that your said answering defendants have never denied their obligation to pay the said amount, but as to this sum they aver and allege the facts to be as follows, to-wit: That on or about the 5th day of November, 1896, they made an unconditional tender of the said $ 34, in legal money of the United States, to the village treasurer of said village of Dodge, and that said treasurer absolutely refused to accept said moneys; and that on the 10th day of December, 1896, they made another and further unconditional tender of said sum of $ 34, in legal money of the United States, to the village treasurer of said village of Dodge, and the proper and lawful officer to receive the same, and the same was again refused, whereupon said sum was deposited in the Farmers State Bank of Dodge, Nebraska, to the order of the proper authorities of the said village of Dodge, and that at the same time the Board of Trustees and the treasurer of the said village of Dodge were duly notified of said deposit, and that the said tender of said sum of $ 34 has been at all times kept good by said defendants, and they have at all times had said money ready to be delivered unto said plaintiff or its authorized representatives; and that in this answer as to the second cause of action stated in said amended petition the said tender is renewed and kept good as it has been at all times since the making of the same, and for this purpose...