Paxton v. State

• Decision Date: 19 December 1899
• Citation: 59 Neb. 460,81 N.W. 383
• Parties: PAXTON ET AL. v. STATE ET AL.
• Court: Nebraska Supreme Court

59 Neb. 460

81 N.W. 383

PAXTON ET AL.

v.STATE ET AL.

Supreme Court of Nebraska.

Dec. 19, 1899.

Syllabus by the Court.

1. In reviewing a judgment rendered on a verdict given in obedience to a peremptory instruction, it is the duty of the reviewing court to assume the existence of every material fact which the evidence for the complaining party establishes or tends to prove.

2. An official bond is without validity until it has been delivered.

3. The governor has no authority, as an agent of the state, to accept the official bonds of the state or district officers, and by such acceptance make them binding obligations.

4. The duty of the governor with respect to the official bonds of state and district officers is merely to approve them.

5. The official bonds of state and district officers (except that of the secretary of state) do not become binding obligations until they have been filed in the office of the secretary of state.

6. Section 15, c. 10, Comp. St. 1899, contemplates that an official bond, after its approval by the proper officer, shall be returned to the person presenting it, and be by him filed in the proper office for record.

7. An instrument is not delivered until it has passed beyond the dominion, control, and authority of the maker, and is no longer capable of being recalled.

8. The approval of an official bond by the governor does not work its acceptance, nor make it a valid contract.

9. The principal in an official bond has an implied agency to deliver the bond as the contract of his sureties.

10. Possession of an official bond by the principal on a day subsequent to that fixed by the statute for its delivery carries with it, prima facie, the right to have it approved and delivered.

11. Sureties on an official bond have the right, at any time before the obligation is delivered, to revoke their principal's authority to bind them, but until such revocation the right of the principal to deliver the instrument is presumed to continue.

12. And, until the sureties have signified an intention to recede, the obligee may bind them by accepting their offer to answer for the official misconduct of their principal.

13. Several days after the time fixed by statute for filing an official bond, the sureties thereon signed an instrument reciting “that any and all additional names that he [the principal] may procure on said bond shall in no manner affect our liability on said bond, and each of us are held liable the same as if said names had not been added.” Held, that such instrument affords the inference that at the time it was signed the sureties knew the bond had not become effective by having been approved and filed for record.

14. And held, also, that when the principal presented the bond for approval, accompanied by such instrument, he had apparent authority from the sureties to have the obligation approved and delivered.

15. No officer of the state is authorized to demand additional sureties of the state treasurer after his official bond has been duly approved and filed for record.

16. The failure of a state or district officer to have his official bond approved, and filed for record in the proper office, within the time fixed by statute, creates a vacancy in the office to which he has been elected or appointed.

17. In such case the state may waive its right to oust the incumbent, and elect to deal with him as the person entitled to the office.

18. And, if the state does waive its right, the sureties on the official bond of the officer are estopped from denying the validity of the bond because it was not approved and filed within the time fixed by law.

19. Where two or more persons have converted the property of another, the latter may sue them either jointly or severally, as he may elect.

20. And a court of equity will not require the injured party to pursue one of the wrongdoers rather than another, who is equally culpable.

21. A document prepared by an accounting officer during his term of office, showing the receipts and disbursements of, and the balance chargeable against, a financial officer, is competent evidence against the sureties on the official bond of the latter officer if it was used by him in accounting to his successor and turning over the office at the time and in the manner contemplated by the law and the contract of the sureties.

22. A person who has held an office for some considerable time is, presumably, competent to give an opinion as to the meaning of entries in the books of the office evidencing business transactions therein.

23. A state treasurer, who, in accounting tohimself as his own successor, turns over bank credits, which are afterwards entered as cash receipts on the books of his office, prima facie relieves his first-term bondsmen from liability, and charges his sureties for the second term with the amount of such credits.

24. The official records kept by the state treasurer are competent evidence against his sureties, and, in the absence of countervailing proof, are conclusive.

25. One to whom a certificate of deposit or other evidence of money in the custody of a solvent bank has been transferred is as effectually invested with control and dominion of such money as though there had been a manual delivery of it to him.

26. The law presumes that a public officer faithfully performs official duty, and that the records of his office truly represent the business transactions entered therein.

27. In an action for a specific conversion of public money, brought by the state against an extreasurer and the sureties on his official bond, it is not error to exclude evidence tending to show that such officer paid his own funds into the public treasury, unless it appear that the alleged conversion occurred prior to such payment.

28. But in an action for a general balance such evidence would be admissible, even under a general denial, in support of a theory that an apparent shortage was the result of the treasurer having been charged, on the books of his office, with moneys which in fact belonged to himself.

29. Public corporations act through their officers and agents, and the declarations of such officers and agents, made during and in relation to the transaction of official business, are, in a proper case, admissible in evidence as part of the res gestæ.

30. Pleadings may be received in evidence, in suits other than those in which they were filed, as admissions or declarations against interest.

31. But such pleadings, when not signed or verified by the party himself, are received only upon actual or presumptive proof that the admissions which they contain were either made by his direction or were afterwards sanctioned by him.

32. The weight to be given a pleading in another action as an admission of the facts stated therein is for the jury.

Error to district court, Douglas county; Fawcett, Judge.

Action by the state of Nebraska against William A. Paxton, Mary Fitzgerald, and others. From a judgment in favor of the state, except as to Mary Fitzgerald, William A. Paxton and certain other defendants bring error. Reversed.

Norval, J., dissenting.John C. Cowin, F. T. Ransom, Robert Ryan, and Frank Irvine, for plaintiffs in error.

C. J. Smyth, Atty. Gen., W. D. Oldham, Dep. Atty. Gen., Ed. P. Smith, E. M. Bartlett, and James Manahan, for defendants in error.

SULLIVAN, J.

At the general election in 1894, Joseph S. Bartley was elected to the office of state treasurer, as his own successor. On January 3, 1895, he took the oath required by law, and tendered his official bond to the governor for approval. The sureties whose names then appeared upon the obligation were Nathan S. Harwood, F. M. Cook, A. B. Clark, John H. Ames, Charles A. Hanna, Mary Fitzgerald, C. C. McNish, and E. E. Brown. The governor did not approve the bond on the day it was presented, but returned it to Bartley, who promised to strengthen it by procuring additional sureties. On January 9, 1895, the bond was again presented for approval with the names of Thomas Swobe, Cadet Taylor, and W. A. Paxton added to the names of the original obligors. It was thereupon approved, and on the same day filed for record and recorded in the office of the secretary of state. Bartley, at the end of his second term, was found to be a defaulter, and this action was instituted in behalf of the state to recover of the defendants, as his sureties, the amount of the defalcation. The cause was tried to a jury in the district court of Douglas county, and resulted in a verdict and judgment against all the defendants except Mary Fitzgerald, who succeeded in establishing the defense of incapacity to contract at the time her signature was obtained. The verdict against the sureties who are here complaining was rendered in obedience to a peremptory instruction from the trial court, and it becomes, therefore, our duty, in examining the questions presented for decision, to assume the existence of every material fact which the evidence for the defendants establishes or tends to prove.

The original sureties contend that they are not bound, because the bond was not accepted and approved on or before January 3d, which was the first Thursday after the first Tuesday in that month. Brown further insists that the additional sureties signed without his consent, and that he thereby became released from his obligation. Paxton, Swobe, and Taylor claim that the bond was already effective when their signatures were obtained, and that their undertaking is void for want of a consideration to support it. We will consider these defenses together. The petition alleges that the bond was delivered to the governor on January 3d, and on that day filed for record in the office of the secretary of state. It is also alleged that the bond was afterwards returned to Bartley, to obtain the signatures of additional sureties, and that on January 9th it was again handed to the governor, who then approved it, and filed it with the secretary of state. These...