Pape v. the People

• Decision Date: 28 February 1886
• Citation: 19 Bradw. 24,19 Ill.App. 24
• Parties: GUSTAVUS PAPE ET AL.v.THE PEOPLE, ETC.
• Court: United States Appellate Court of Illinois

19 Ill.App. 24

19 Bradw. 24

GUSTAVUS PAPE ET AL.

v.THE PEOPLE, ETC.

Appellate Court of Illinois, Fourth District.

February Term, 1886.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Randolph county; the Hon. WM. H. SNYDER, Judge, presiding. Opinion filed April 15, 1886.

Mr. RALPH E. SPRIGG and Mr. J. J. MORRISON, for plaintiffs in error; as to liability of sureties, cited Mix v. Singleton, 86 Ill. 194; Stern v. People, 96 Ill. 475; Coons v. People, 76 Ill. 383.

Mr. H. CLAY HORNER, Mr. ABRAM G. GORDON and Mr. DON E. DETRICH, for defendants in error; that in the absence of evidence as to when default occurred it will be presumed to have occurred during last term of office, cited Brandt on Suretyship and Guaranty, § 467; Kelly v. State, 25 O. 579; Pinkstaff v. People, 59 Ill. 150; Kagay v. Trustees, 68 Ill. 76.WILKIN J.

In the year 1877, John H. Altrogge was elected treasurer of Randolph county. In 1879 he was re-elected, and by act of the legislature his last term was extended one year. He gave bonds for the first two regular terms, and in December, 1881, executed the bond sued on for the extended term.

He died May 27, 1882, and R. G. Detrich was appointed his successor. He was afterward ordered by the county board of said county to examine the accounts of Altrogge, and report the same. He afterward made his report, reporting each term separately, and at the March meeting of the board the same was approved.

This report shows that during the first term Altrogge received something over $18,000 more than he paid out. That during his second term he again received about $28,000 more than he distributed, exclusive of the amount unaccounted for at the end of his first term, and that during the extended term up to the time of his death his credits amounted to about $45,000 more than his receipts--not taking into account the amounts unaccounted for during the previous terms. These several reports showing a defalcation, and there being different sureties on the three several bonds of Altrogge, suits were brought to the September term, 1884, of the Circuit Court of Randolph county, on each of said bonds.

At that term all of the cases were continued by agreementand referred to R. H. Mann, Esq. The order of reference is informal but is treated by all parties, and by the court, as a reference under the provisions of the statute.

At the March term, 1885, the referee made his report, and as we understand from the record, reported the testimony taken in all the cases as the evidence in this case. He found against plaintiffs in error and reported the amount due to be $1,718.12. Exceptions were filed to this report, and also a motion by plaintiffs in error, to re-refer the case for further evidence. Both the motion and exceptions were overruled and judgment entered for the amount so reported, and costs.

It is first insisted that the trial court erred in refusing to refer the case back for further evidence. The power given to the court by section 1, chapter 117, Revised Statutes, page 981, Hurd's edition, 1885, is a discretionary power, with the exercise of which this court will not interfere unless it is clearly shown that it has been abused, and of this there is no proof in the record. By the exceptions filed and the errors assigned, but one other question is raised for our decision, and that is whether or not the evidence justified the finding of the referee as to the liability on the last bond. That Altrogge was defaulter to at least the amount of the judgment rendered is not denied, but it is claimed that the defalcation occurred during the first and second terms, or one of them, and...