Hunt v. State ex rel. Edger

• Decision Date: 30 January 1884
• Docket Number: 9381
• Parties: Hunt et al. v. The State, ex rel. Edger, Auditor
• Court: Indiana Supreme Court

93 Ind. 311

Hunt et al. v. The State, ex rel. Edger, Auditor

No. 9381

Supreme Court of Indiana

January 30, 1884

From the Randolph Circuit Court.

The judgment is affirmed, with costs.

W. W Canada, L. W. Study and D. Turpie, for appellants.

W. A Thompson, A. O. Marsh and J. W. Thompson, for appellee.

Niblack J. Elliott, J., did not participate in the decision of this cause.

OPINION

Niblack, J.

Action by the State, on the relation of George N. Edger, auditor of Randolph county, against Harrison P. Hunt, late treasurer of that county, as principal, and Allen Golliher and twenty-six other persons as sureties, upon a county treasurer's bond.

The complaint was in three paragraphs. Each paragraph charged that Hunt, while in office, had received large sums of money belonging to the several funds under his control, which he had refused to pay over, or to account for, as required by law. The third paragraph, in addition, charged that Hunt, near the close of his term of office, made a false and fraudulent report of the amount of money in his hands to the board of commissioners of the county of Randolph, which the board were fraudulently induced to accept and approve, but which acceptance and approval had been, upon due notice, and before the commencement of this action, revoked and set aside. Demurrers for want of sufficient facts were filed to each paragraph of the complaint, and were overruled as to all of the paragraphs.

The defendants then answered in eight paragraphs. The first, third, fourth and seventh paragraphs, each in a slightly different form, pleaded the acceptance and approval of Hunt's report by the board of commissioners as an adjudication of the matters involved in, and hence in estoppel of, the action, and demurrers were sustained to each of those paragraphs.

The fifth paragraph was in general denial, and issue was joined upon the remaining paragraphs.

The court tried the cause, and at the request of the defendants made a special finding of the facts. This special finding, with the conclusions of law thereon, may be summarized as follows: That the defendant Harrison P. Hunt, having been duly elected treasurer of Randolph county, entered upon the discharge of the duties of his office on the 8th day of September, 1875, and continued to serve as such treasurer for the term of two years; that, prior to entering upon the duties of his office, the said Hunt, with the other defendants as his sureties, executed the bond in suit, as his official bond, in the penal sum of $ 225,000; that on the 12th day of June, 1877, the said Hunt exhibited to and filed with the board of commissioners of the county of Randolph, his annual report, purporting to give, upon his oath, a summary of his official transactions as treasurer during the fiscal year commencing on the 1st day of June, 1876, and ending on the 31st day of May, 1877, and of the balances of moneys in his hands belonging to the different funds under his control on the last named day; that said board, after an examination thereof in open court, accepted and approved said report, and ordered it to be spread upon the record of their proceedings upon the assumption that it was the regular annual settlement of the said Hunt, as treasurer, with the board for the year to which it referred, and that it contained a correct statement of his transactions as such treasurer during that year; that considering the skill and great length of time which would have been required, it was impracticable for the board to examine all the books and papers necessary to a full understanding of all the matters to which reference was in general terms made in the report so submitted to them, and having no notice of any mistake therein, and believing the same to be in all things correct, the board relied alone upon its statements when they accepted and approved said report; that a short time prior to the time at which said report was submitted to the board of commissioners, one William D. Kiser, who was then auditor of the said county of Randolph, prepared a settlement sheet between him as auditor and the defendant Hunt as treasurer; that said Kiser, in making out said settlement sheet, acted mainly upon information derived from official records, and from memorandums within his reach, receiving only slight personal assistance from Hunt, the treasurer; that the report submitted by Hunt to the board of commissioners was not prepared by him, but was written under his general direction by a person employed in his office; that the report, as to the particular matters in controversy, adopted the items and calculations contained in the settlement sheet made by Kiser; that in said settlement sheet two items of credit were allowed to Hunt, as follows:

"Second instalment unpaid

$ 62,315.86

Total delinquencies

38,309.62."

That these items of credit were carried into the report; that of the amount of the second instalment for which Hunt so took credit in his report, $ 9,944.56 was for delinquent taxes, which was also included in the amount of total delinquencies, constituting, as has been seen, the next item of credit; that in this way Hunt received credit twice in his report for the sum of $ 9,944.56; that Hunt's aggregate receipts during the year ending May 31st, 1877, were $ 92,461.64; that his total disbursements during that period were only $ 82,517.08, leaving in his hands unaccounted for by his report, and which he has ever since retained, the above named sum of $ 9,944.56; that he had, at the time of the commencement of this suit, accounted for and paid over all moneys which had come into his hands as treasurer except this sum of $ 9,944.56; that about the 1st of September, 1877, the board of commissioners, for the first time, received information that the report of Hunt made to them, as herein above stated, did not give the true financial condition of the county at the time it was submitted; that on the 5th day of said month of September the commissioners caused a notice in writing to be served on Hunt, conveying to him the nature of the information which they had received, and informing him that on the 10th day of that month they would proceed to re-examine his said report, and to enquire whether, in fact, it was erroneous in any of the respects to which their information extended; that Hunt failed to attend the meeting of the board of commissioners on the day lastly above named; that the board nevertheless proceeded on that day to re-examine said report, and to more particularly enquire into the accuracy of the same; that, as a result of such re-examination and enquiry, the board came to the conclusion that said report was materially inaccurate, and thereupon entered an order revoking and setting aside their former order accepting and approving the same, and ordering and instructing the relator herein, as the auditor of the county, to institute this action; that thereafter, and before the commencement of this suit, Hunt was notified of the inaccuracy of his report, and specially requested to pay over the amount of money still remaining in his hands; that for matters occurring subsequent to the time of filing his report Hunt was entitled to a further credit of $ 933.42, leaving a balance in his hands as money inadvertently, as above, unaccounted for at the time of the commencement of this action, that is to say, on the 12th day of September, 1877, the sum of $ 9,011.12; that there was due for interest at the time of the trial the sum of $ 1,528.77; that adding the sum of $ 901.11 for penalty due under the statute, there was due from Hunt, as the late treasurer of the county, the aggregate sum of $ 11,441.

Upon these facts the court came to the conclusion that the plaintiff was entitled to have judgment against Hunt and his sureties upon the bond described in the complaint for said sum of $ 11,441. The defendants excepted to the conclusion at which the court thus arrived, and in addition moved for judgment in their favor upon the special finding of facts upon the ground that the acceptance and approval of Hunt's report by the commissioners operated as, and was in fact, an adjudication in their favor of the matters in controversy. But that motion was overruled, and judgment was given against the defendants for the sum of $ 11.441, specified as above.

The first and second paragraphs of the complaint each failed to aver that the relator had been instructed, either by the auditor of state or the proper board of commissioners, to institute this suit, and for that reason it is claimed that the demurrers to both of those paragraphs ought to have been sustained.

The act of December 21st, 1872, contained sections as follows:

"Section 184. If any such county treasurer shall refuse or neglect to pay over all moneys, as provided herein, he and his sureties shall be held liable to pay the full amount which he should have paid over, together with the interest and ten per centum damages.

"Section 185. In any such case, the county auditor, on being instructed to that effect by the auditor of state, or by the board of county commissioners, shall cause suit to be instituted against such county treasurer and his sureties," etc. 1 R. S. 1876, p. 117.

Whether in an action like this, an averment that the suit was instituted either by order of the auditor of state or of the board of commissioners, is, in any view, a material averment of the complaint, is a question we have not considered, and need not consider at the present hearing. It is, in any event, a question which does not go to the merits of the action, and hence is not, as it was not in this case, raised by a demurrer for want of sufficient facts. Judged from the standpoint afforded by analogous cases, the question is one which...