Long v. Emsley

• Decision Date: 22 October 1881
• Parties: LONG v. EMSLEY ET AL
• Court: Iowa Supreme Court

10 N.W. 280

57 Iowa 11

LONG v. EMSLEY ET AL

Supreme Court of Iowa, Des Moines

October 22, 1881

Appeal from Cerro Gordo Circuit Court.

THE defendants are bankers, and as such had on deposit public money collected by the county treasurer. The plaintiff was township clerk, and said treasurer gave a check payable to the plaintiff in his individual capacity. The money in fact belonged to the township of which defendant was clerk. The check was paid by plaintiffs and the money deposited in the bank of Kirk Bros. to the individual credit of the plaintiff. Kirk Bros. had no notice the money belonged to the township. The defendants on the day the deposit was made obtained knowledge of such fact and acting for others caused Kirk Bros. to be garnished as the debtors of the plaintiff individually. Such proceedings were had that judgment was rendered against Kirk Bros. as garnishees and they paid the judgment to the defendants who were authorized to receive it. This action is brought to recover said money. In addition to which the plaintiff sought to recover exemplary damages. Trial by jury, verdict and judgment for the plaintiff, but both parties appeal. The defendants, however, first appealed.

REVERSED.

Miller & Cleggett, for appellants.

Weber & Sherwin, for appellee.

OPINION

SEEVERS, J.

I.

The amount of money paid on the judgment against Kirk Bros. was less than one hundred dollars, but judgment was asked for one hundred and fifty dollars and exemplary damages. It seems therefore, the amount in controversy, as shown by the pleadings, is more than one hundred dollars. The Circuit Court, however, doubted whether this was so, and has certified certain questions under the statute upon which it is said to be desirable to have the opinion of the Supreme Court. As such questions fairly and fully present matters which, when determined, are decisive of this appeal, we shall regard them as presenting the errors relied on without regard to the question whether the certificate was essential to give this court jurisdiction.

We are asked whether "a township clerk can prosecute an action to recover public money, such as road funds, belonging to his township, in the hands of third parties." This question under the circumstances before stated must be answered in the affirmative. The plaintiff claims to have been illegally deprived of the money and he is entitled to the same in his official capacity, and we think he can maintain an action therefor in such capacity.

II. We are asked whether:

"When a township clerk has received public money of the township in his capacity of clerk, and has deposited the money with a bank or banker, in his individual name, as a general deposit, without disclosing the fact that the money was a public fund, but without adding or mixing it with his individual money, does the money in law, as to third parties without notice, remain a public fund; or has it become the individual property of the township clerk?"

We think the money becomes the individual property of the person making the deposit. Lowry v. Polk County, 51 Iowa 50, 49 N.W. 1049; School District in Geeenfield v. First National Bank, 102 Mass. 174. In this last case the facts were much like those in the case before us. The essential difference being that the bank in which the deposit was made, appropriated the money without legal process in payment of the individual debt of the person making the deposit. By whom the money is seized cannot make any difference. The essential fact is to whom did the money belong after it was deposited. That it belonged to Kirk Bros. and that the relation of debtor and creditor existed between them and the plaintiff as an individual was expressly held in Lowry v. Polk County, before cited. There is no statute authorizing the township clerk to deposit public money in a bank, and when he does so, such deposit, as between him...