Mermis v. Jackson

• Decision Date: 06 December 1937
• Docket Number: No. 1519.,1519.
• Citation: 93 F.2d 579
• Parties: MERMIS v. JACKSON, Clerk of Court.
• Court: U.S. Court of Appeals — Tenth Circuit

93 F.2d 579 (1937)

MERMIS v. JACKSON, Clerk of Court.

No. 1519.

Circuit Court of Appeals, Tenth Circuit.

December 6, 1937.

E. J. Malone, of Hays, Kan., for appellant.

T. F. Railsback, of Kansas City, Kan. (Andrew F. Schoeppel, of Ness City, Kan., on the brief), for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

PHILLIPS, Circuit Judge.

Laura M. Jackson, as clerk of the district court of Ness County, Kansas, brought this action against the First National Bank in Ness City, Kansas, Richard A. Mermis, receiver of the bank, and The Central Trust Company of Topeka, Kansas, to recover three United States bonds, of the aggregate face value of $2,500.00, with unmatured interest coupons attached thereto. The cause was originally commenced in the district court of Ness County and was duly removed to the District Court of the United States for the District of Kansas.

On August 22, 1935, the attorneys for the bank, the receiver, and the clerk, respectively, filed in the cause an agreed statement of facts wherein it was stipulated:

That the bank is a defunct national banking corporation now in liquidation; that Mermis is the duly appointed, qualified and acting receiver thereof; that Laura M. Jackson is the duly elected, qualified and acting clerk of the district court of the Thirty-third Judicial District in and for Ness County; that as such clerk she has received from time to time "fees, funds and moneys, as is required of the clerks of the District Court within the * * * State of Kansas"; that on February 4, 1933, she had on deposit with the bank the sum of $2,933.44; that on or before the last mentioned date the bank procured the bonds referred to above, to use "as security for the deposit of public funds for the clerk of the District Court of Ness County, Kansas"; that such bonds were deposited with the Trust Company in its trust department for the security of the clerk of the court of Ness County, Kansas, and that the Trust Company issued its receipt therefor; that the amount of funds on deposit to the credit of the clerk in the bank on March 4, 1933, the date the bank suspended business, was $2,996.41; that two dividends had been paid thereon, leaving a balance in the deposit of $1,850.29.

On May 4, 1935, the Trust Company filed its answer wherein it admitted custody of the bonds, alleged that the receiver and the clerk made conflicting claims thereto and prayed that it be permitted to deliver the bonds into the custody of the court to abide its judgment.

On January 29, 1936, the receiver and the bank filed an answer and cross-petition in which they set up that the bank was without authority to pledge its assets to secure the deposit of the clerk; that the attempt to pledge the bonds was unlawful and ultra vires; that the receiver had demanded the bonds from the Trust Company; and that the Trust Company had refused to deliver them to him.

Trial by jury was duly waived and the cause was submitted on February 1, 1936.

On February 26, 1936, the parties entered into a further stipulation to the effect that Laura M. Jackson took her office as clerk on January 10, 1933.

On March 5, 1936, the receiver filed an application to amend the stipulation of facts. This application sought to have the word "public" stricken from the portion of the agreed statement of facts last quoted above; and stated:

"The true facts are that said funds in the hands of said clerk at said time were not all public funds, and that only a small portion of said funds were public funds; such as, unpaid tax money, fees due the Secretary of State, or the State Treasurer, or the United States Government, and that all other funds were private funds, the property of litigants."

On March 9, 1936, the clerk filed objections to the application to amend the agreed statement. The trial court sustained the objections.

The trial court found that the funds on deposit to the credit of the clerk were public funds and that she was entitled to recover the bonds on deposit with the Trust Company, or sufficient thereof to cover the balance of the deposit in the bank.

We are of the opinion that the court did not abuse its discretion in denying the application to amend the stipulation. Furthermore, we doubt that the inclusion of the word "public" in the portion of the agreed statement of facts quoted above was of material significance. The deposit according to the stipulation was made up of "fees, funds and moneys" which the clerk was required by law to receive. We shall presently undertake to show that all of the funds received and held by the clerk in her official capacity were public funds, and embraced within the statutory provisions authorizing the giving of security to protect public deposits.

Section 7 of article 3 of the Constitution of Kansas, G.S.Kan.1935, p. LV, creates the office of clerk of the district court in each county and provides that his duties shall be prescribed by law.

Section 60-2401, G.S.Kan.1935, provides that before the clerk shall issue summons the plaintiff must give a cost bond. It further provides that a resident plaintiff may deposit with the clerk $15.00 in lieu of a cost bond and that a nonresident plaintiff may deposit in lieu of a cost bond, such sum or sums as the clerk shall deem sufficient to cover all the costs.

Section 26-101, G.S.Kan.1935, provides that the plaintiff in a condemnation action may deposit with the clerk the total amount of the appraised value of the land sought to be condemned, together with the fees of the appraisers and the court costs, and thereupon take possession of the land.

Section 60-3806, G.S.Kan.1935, provides that, when no execution is outstanding, the clerk may receive the amount of the judgment and costs and receipt therefor and that he shall pay the amount received over to the party entitled thereto on request.

Section 28-146, G.S.Kan.1935, provides that it shall be the duty of the clerk receiving any costs belonging to any other person to hold the same subject to the order of the person entitled thereto and to pay the same over on request, and if such fees are not called for within one year after having been received, to pay them over to the county treasurer and take his receipt therefor.

Section 20-904, G.S.Kan.1935, provides that in certain circumstances the clerk shall collect the reporter's fees as other costs, and that when collected he shall pay the same into the state treasury in quarterly installments.

Section 28-117, G.S.Kan.1935, prescribes the fees to be charged by the clerk for rendering the services therein specified. It further prescribes that all fees so charged and any money received by the clerk for any service required by law to be performed by him, when collected, shall be paid into the county treasury to become a portion of the general funds of the county.

Section 17-221, G.S.Kan.1935, provides that when an action is instituted in any court of the state against a foreign corporation doing business in the state the plaintiff shall deposit with the clerk a fee of $2.50, called the service of process fee, to be taxed as costs, and that the clerk shall send such fee to the Secretary of State along with the summons.

Section 28-117c, G.S.Kan.1935, provides that upon request of the Judicial Council the clerk shall prepare and furnish complete and accurate detailed information concerning cases disposed of and cases pending; that the county commissioners shall pay the clerk a sum equal to ten cents for each case so reported; that the clerk shall tax a fee of ten cents for each case filed, to be collected as other costs, and that such fee when collected shall be paid by the clerk into the county treasury.

In view of the statutory provisions above referred to, it is reasonable to assume that some part of the funds that made up the deposit was received and held by the clerk in her official capacity for the benefit of private litigants or persons entitled thereto.

Section 21-545, G.S.Kan.1935, defining embezzlement, insofar as it relates to embezzlement by public officers, reads:

"Any officer of this state or any county, township, city, board of education or school district or road district therein, * * * who shall embezzle or convert to his own use, * * * any...