Kelley v. Ballard
| Decision Date | 27 April 1936 |
| Docket Number | 4-4297 |
| Citation | 93 S.W.2d 1256,192 Ark. 663 |
| Parties | KELLEY v. BALLARD |
| Court | Arkansas Supreme Court |
Appeal from Clay Chancery Court, Eastern District; J. F. Gautney Chancellor; affirmed.
Decree affirmed.
E G. Ward, O. T. Ward and Carl L. Hunter, for appellants.
Arthur Sneed, for appellees.
MCHANEY J. BAKER, J., disqualified and not participating.
Appellant Kelley was the manager, collector, bookkeeper and disbursing officer of Light and Power Improvement District No. 1 and Water Works Improvement District No. 1 of Piggott, Arkansas from November 1, 1930, to September 1, 1933, and appellant, American Surety Company, was surety on his official bond in the sum of $ 3,000. In March, 1934, after having an audit made of the separate books kept by Kelley in each of said districts, which audit showed a shortage in his accounts with both districts, appellees instituted this action against appellants to recover the shortage, and to reform the bond so as to show the obligees to be the two appellees above named instead of "Board of Commissioners, Public Improvement Districts, Piggott, Arkansas," as written in the bond. In response to a motion to make the complaint more definite and certain, appellees attached as an exhibit to the complaint an itemized statement of cash collected by Kelley, and not accounted for from December 1, 1931, to September 1, 1933, in the Light and Power District, in a total sum of $ 2,328.22, and a like statement for the same period in the Water Works District in a total sum of $ 1,016.08. A further sum was claimed amounting to $ 63.10 which was represented by customers' receipts for which no credits were given in the Customers Ledger accounts. The items above mentioned other than the $ 63.10 represented the result of an audit of the books kept by Kelley, made subsequent to his discharge, and were arrived at by totaling the credits in Customers Accounts and deducting therefrom adjustments and merchandise returned for credit, and comparing it with his cash, both on hand and in bank, after taking into consideration cash paid out for expenses, and he was found short in said amounts. Appellants answered and admitted that the bond was made for the benefit of the appellee districts, but denied any shortage in the accounts. They also moved to transfer the case to the circuit court and objected to the appointment of a master to state the account, all of which was overruled by the court. A master was appointed who took all the testimony, restated the account and found appellant short in the Power and Light District in the sum of $ 1,670.08, and in the Water Works District the sum of $ 1,012.06, which, including the $ 63.10 item above mentioned made a total shortage, as found by the master of $ 2,745.24. This amount was reported to the court to be due appellees by appellants, and a decree was entered in accordance with the master's findings.
For a reversal of the judgment against them, appellants make a number of contentions. We will not discuss them all, as to do so would unduly extend this opinion. One of the arguments is that the chancery court should have transferred the case to the circuit court on their motion because the former was without jurisdiction. It is said that under §§ 5718 and 5719, Crawford & Moses' Digest, municipal improvement districts are required to make annual settlements and file same with the clerk of the city or town and that the council shall examine same and disallow all unjust charges and credits, subject to reexamination in a court of chancery. These sections have no application in matters such as are now under consideration. This is an action by improvement districts to recover from an employee and his bondsman a sum of money embezzled by the employee in the course of his employment. The chancery court had jurisdiction of this action for two...
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