Kuhl v. Pierce Cnty.

• Decision Date: 04 April 1895
• Citation: Kuhl v. Pierce Cnty., 44 Neb. 584, 62 N.W. 1066 (Neb. 1895)
• Parties: KUHL ET AL. v. PIERCE COUNTY.
• Court: Nebraska Supreme Court

44 Neb. 584

62 N.W. 1066

KUHL ET AL.

v.PIERCE COUNTY.

Supreme Court of Nebraska.

April 4, 1895.

Syllabus by the Court.

1. All parties to a joint judgment are necessary parties to a petition in error filed here by one of their number to reverse it; but this rule does not require that all parties to a suit in which a judgment has been rendered should be made parties to the error proceedings instituted here for a review of such judgment. Only the parties who are liable on, or bound by, the judgment, are necessary parties to the proceedings in error here.

2. A legal action cannot be referred, except by consent of parties, as a litigant cannot be deprived of his constitutional right to a jury for the trial of issues of fact made by the pleadings in a legal action. Mills v. Miller, 3 Neb. 87, followed.

3. To recover public moneys collected and embezzled by him, Pierce county brought an action against its defaulting county treasurer, and all the sureties on his two official bonds,--the treasurer having been elected for two terms,--the sureties on said bonds being different persons. The petition alleged that the ex-treasurer was insolvent, and that the county was unable to prosecute an action at law on either of said bonds because the books and records kept by the treasurer did not disclose when the defalcation complained of occurred, and there was no evidence known to the county by which it could prove, in an action at law, whether such defalcation occurred during the treasurer's first or second term of office. The prayer of the petition was for an accounting in equity. Held: (1) That the averments of the petition made out a cause of action in favor of the county upon contracts for the payment of money only, unincumbered by any collateral agreements, contracts, or securities whatever; (2) that the action was one legal in its nature; (3) that the facts averred in the petition were not sufficient to entitle the county to equitable relief; (4) that the county would not be permitted to make use of a state of facts brought about by the neglect of the legal duties of its county board to deprive the sureties on their treasurer's official bond of their constitutional right to a jury trial; (5) that the sureties on the treasurer's bond were entitled to a jury for the trial of the issues of fact made by the pleadings.

Error to district court, Pierce county.

Action by the county of Pierce against F. Kuhl and others. From a judgment for plaintiff against some of the defendants, they bring error. Reversed.C. Hollenbeck and Powers & Hays, for plaintiffs in error.

W. W. Quivey and Allen, Rupert, Robinson & Reed, for defendant in error.

RAGAN, C.

At the general election held in November, 1887, one Carl Korth was duly elected treasurer of Pierce county. He qualified by giving bond and entering upon the discharge of his duties. The plaintiffs in error, hereinafter called the “sureties,” signed Korth's official bond as treasurer for the term for which he was elected, and which expired on the 1st of January, 1890. At the November election, 1889, Korth was again elected treasurer of Pierce county for two years, and again qualified and entered upon the discharge of his duties for the second term, commencing January 1, 1890. A large number of parties became sureties on his official bond for his second term of office. None of the plaintiffs in error, the sureties, were signers of the second bond. On the 18th of December, 1890, Korth resigned and was found to be a defaulter, and this action was brought by Pierce county to the district court against Korth and all the sureties on both his bonds. The petition contained the necessary averments of the election of Korth as treasurer of the county for two terms, as aforesaid; his acceptance of the office for each of said terms; and his giving bonds to faithfully discharge the duties of his office, and account for and pay over all moneys which should come into his hands as such treasurer during each of said terms of office. The petition then alleged that Korth did at various times during the time he held said office misappropriate large amounts of money, and converted the same to his own use; and that he was on the 18th of December, 1890, a defaulter in the sum of $35,517.41, which sum he had neglected and refused to account for and pay over to the proper authorities; that Korth had resigned the office of treasurer, and that he was wholly insolvent. The petition then alleged that the county “is unable to prosecute an action at law on either of said obligations, for the reason that the books, papers, and records of said * * * treasurer, * * * as compiled and made by said defendant Korth during the term that he exercised the duties and functions of said office, * * * and as said books now appear do not disclose and show wherein the said defalcation occurred, nor is there any record or evidence known to plaintiff whereby plaintiff can in any action at law show whether said defalcation occurred during the period of time covered by said first obligation, or during the period of time covered by said second obligation.” The prayer of the petition was that an accounting in equity might be had to the end that it might be adjudged and decreed when the several misappropriations and conversions of money occurred, the amounts thereof, and for what amounts of the defalcation the sureties on the first and second bonds were respectively liable. The sureties demurred to this petition, on the ground that the petition did not state facts sufficient to entitle the county to equitable relief. The signers or sureties on the second bond submitted a similar demurrer. These demurrers were by the court overruled, and the sureties and the signers of the second bond answered. The answers, among other defenses, alleged that the petition did not state facts sufficient to entitle the plaintiff to equitable relief. No reply appears to have been filed by the county. After the issues were thus made up, the sureties, and the signers of the second bond as well, demanded a jury trial, which was denied by the court, and on motion of the county the case was referred to a referee “to take the evidence and report the facts and evidence to this court.” This order was made against the objection and exceptions of the sureties and the signers of the second bond as well.

In due time the referee heard the evidence, made his findings of fact, and reported the same; and on the 13th day of October, 1892, the district court overruled the exceptions filed to the report of the referee, and denied the motions for a new trial, and entered three judgments, as follows: (1) A judgment against Carl Korth only for $37,777.40; (2) a judgment against the sureties only for $14,544.18; (3) a judgment against the signers of the second bond only for the sum of $23,233.22.

Carl Korth has neither appealed from the judgment rendered against him, nor filed in this court any petition in error to reverse the same. Such judgment, therefore, is not before us for review. Whatever conclusion may be reached in the matter under consideration here must be taken and understood as neither reversing, vacating, modifying, or in any manner affecting the said judgment rendered in favor of Pierce county against Carl Korth. The signers of Korth's second bond have filed in this court a petition in error praying for a reversal of the judgment rendered by the district court against them; but as the judgment was rendered on the 13th of October, 1892, and their exceptions to the referee's report and their motion for a new trial overruled at the same time, and as they did not file in this court their petition in error until the 14th of January, 1895, we are precluded from reviewing the judgment rendered against the signers of the second bond. Hence the conclusion reached in the matter before us must be taken and understood as not reversing, vacating, modifying, or in any manner whatever as affecting, the judgment rendered by the district court of Pierce county in this action against the signers of the second bond. To reverse the judgment of the district court against the signers of Korth's first bond, the sureties in due time filed in this court a petition in error, and this judgment is the only one before us for review. The county has submitted a motion in this court to dismiss the petition in error of the sureties; the only ground of which motion that we deem it necessary to notice is that all the parties to the judgment against the sureties in the district court are not parties to the petition in error filed here for...