Rogers v. State, ex rel. Grimes

• Court: Indiana Supreme Court
• Writing for the Court: Hammond, J.
• Citation: Rogers v. State, ex rel. Grimes, 99 Ind. 218 (Ind. 1884)
• Decision Date: 30 December 1884
• Docket Number: 10,542
• Parties: Rogers et al. v. The State, ex rel. Grimes, Auditor

99 Ind. 218

Rogers et al. v. The State, ex rel. Grimes, Auditor

No. 10,542

Supreme Court of Indiana

December 30, 1884

From the Superior Court of Vigo County.

W. E McLean, N. G. Buff, I. N. Pierce and D. T. Morgan, for appellants.

C. F McNutt, for appellee.

OPINION

Hammond J.

The appellant Rogers was treasurer of Vigo county for two terms. His first term was from August 21st, 1877, to August 21st, 1879, and his second from the latter date to August 21st, 1881. This was a suit against him and his sureties, the appellants herein, upon the bond given for his first term. The breach assigned was that at the close of his first term Rogers was a defaulter, and failed to account for and turn over to himself, as his own successor in office, a large sum of money, to wit, $ 25,000, with which he was then chargeable as such treasurer. Issues were formed, which were tried by a jury, and a general verdict was returned for the appellee in the sum of $ 10,856.53. With their general verdict the jury also, in answer to interrogatories submitted to them by the court at the request of the parties, found specially upon all the important questions of fact involved in the case, about which there was any controversy. The interrogatories submitted at the request of the appellee, and the answers of the jury thereto, were as follows:

"1. What amount did Rogers fail to pay over to himself, as his own successor, on the 22d day of August, 1879? Answer. Twenty-eight thousand nine hundred and eighty-four dollars ($ 28,984).

"2. What amount of the moneys loaned by said Rogers during the first term has been collected by him and turned back into the treasury since the end of said first term? Ans. Eleven thousand six hundred and ninety-four dollars ($ 11,694).

"3. What amount of interest earned by moneys in his hands, as treasurer, during the first term, has been collected by him since the end of said term and turned into the treasury? Ans. One thousand six hundred and fifty-four dollars and fifty-three cents.

"4. What amount of moneys of the first term did Rogers put into the lands sold to Beach, Shannon et al., and in the improvements on said lands? Ans. Sixty-three hundred dollars ($ 6,300).

"5. What amount of moneys derived from the second term did Rogers put into the purchase and improvement of said lands sold to Beach, Shannon et al.? Ans. Fifty-nine hundred and four dollars ($ 5,904).

"6. What amount of money did the said Rogers put into the improvements or purchase of said lands so sold, which was not derived from either term of said office? Ans. Eight hundred dollars ($ 800).

"7. For what sum was the lands sold to Beach, Shannon, et al.? Ans. Ten thousand dollars ($ 10,000).

"8. Was the money for which said land sold to Beach, Shannon et al., paid over to Ray, the successor of Rogers, after Rogers went out of office? Ans. Yes.

"9. From what source did the said Rogers derive the $ 1,250 paid over to Ray as his successor, after he, Rogers, went out of office? Ans. Rents of farms, mostly his wife's land.

"10. What consideration did Rogers pay his wife for the $ 4,000, to raise which she mortgaged her separate property? Ans. He assigned and transferred to her his interest in the firm of Snapp & Rogers, in lumber, etc., business.

"11. What amount of money did Rogers pay into the firm of Snapp & Rogers. Ans. $ 3,854.

"12. From what source did said Rogers obtain or derive the money which he put into the partnership of Snapp & Rogers, and when did he put said money into said partnership? Ans. He checked on his account in bank, which was in the name of 'Newton Rogers, treasurer.' He so paid said money, a small part of it in February, and the balance in May, 1881.

"13. Did the said Rogers pay over to his successor Ray, and at what time, the $ 4,000 which his, Roger's, wife raised by mortgage upon her real estate, and mentioned in interrogatory No. 10? Ans. He did pay it to Ray, his successor, and so paid it on the 20th day of October, 1881."

The interrogatories submitted at the request of the appellants and the answers thereto by the jury were as follows:

"1. Was there any defalcation on account of Rogers' second term? Answer. Yes.

"3. When did said defalcation occur, if any? Ans. When he went out of office, on the 22d day of August, 1881, and in failing to pay over to his successor the full amount of money with which he was chargeable.

"4. What was the amount of such defalcation, if any? Ans. The total amount of the defalcation at the end of the last term, including that of the first term, was, on the 22d day of August, 1881, $ 34,771.73.

"5. What amount did Rogers pay or put into the treasury on account of his salary and fees during the second term, derived from the second term? Ans. $ 15,000.

"6. What amount did Rogers pay into the treasury during the second term from the interest on loans during such second term? Ans. Twenty-six hundred and twenty-five ($ 2,625) dollars."

The appellants moved for judgment in their favor upon the special findings of fact, which was overruled, and judgment was rendered for the appellee for the amount named in the general verdict, over the appellants' motion for a new trial.

That the sureties on the first bond of Rogers were responsible for the defalcation, if any, which occurred during or at the close of the first term, is quite well settled. Ohning v. City of Evansville, 66 Ind. 59; Yost v. State, ex rel., 80 Ind. 350. Where an officer is elected his own successor, giving a bond for each term, it is but just and equitable that the sureties on each bond should be held responsible for the proper application of the public money of the term for which the bond was given, and nothing more.

A county treasurer is required to execute a bond to the acceptance of the board of county commissioners. Section 5911, R. S. 1881. Every official bond given by an officer is obligatory upon him and his sureties for the faithful discharge of all duties required of such officer by any law in force at, or subsequent to, the time of its execution. Section 5528, R. S. 1881. It is the duty of a county treasurer at the expiration of his term of office to deliver to his successor in office all public money with which he is then chargeable. Section 5925, R. S. 1881. Where an officer, intrusted with public funds, is elected his own successor, it is as much his duty, at the close of his first term, to have on hands to pay to himself as his own successor the moneys for which he is then officially accountable, as it would be to have the same in readiness to pay another who might be chosen as such successor.

The case of Goodwine v. State, ex rel., 81 Ind. 109, was an action upon the official bond, executed for his second term, of a township trustee who was elected as his own successor. The special findings of fact showed that at the end of his first term he was chargeable with $ 2,246.41 which he had invested in cattle and stock, and that during his second term he received from such investment $ 2,400. At the close of his second term he failed to pay to his successor $ 1,163.24 for which he was liable by virtue of his office. The sureties on the second bond insisted that the defalcation occurred during the first term. This court, speaking by Woods, J., said: "The facts found by the court show that Thomas" (the trustee) "became a defaulter in his prior term of office--not because he invested money received from public sources in his private business, for that he had a right to do, so long as he kept himself ready to pay out according to law all sums required for public use. Linville v. Leininger, 72 Ind. 491, and cases cited; Bocard v. State, ex rel., 79 Ind. 270; Brown v. State, ex rel., 78 Ind. 239. But because, at the end of his term, he did not have in his hands to turn over, and did not turn over, to his successor (himself), the amount for which he was then accountable. And had he never made good this defalcation, his prior bondsmen, and not the appellants, would have been responsible therefor. He did, however, make it good, as the facts show. By the sale of his property, he obtained money and replaced that for which he was in default, and when he did this, the appellants" (sureties on the second bond) "became liable therefor, as much as if another had been his predecessor in the office, and that other had been in like default and had afterwards made it good by payment to Thomas of the amount due."

The evidence without conflict fully sustained the special finding of the jury, that Rogers, at the close of his first term, was in default in the sum of $ 28,984, by reason of not having that amount ready to pay to himself as his own successor. He was also a defaulter for his second term, and the principal controversy arises over the application of the credits to which he was entitled according to the special findings. It does not appear from the special findings, nor from the evidence, that when, during the second term, he received money which was derived from the first term or from any other source, he manifested or had any intention as to the application of such money, whether upon the liability of his first or second term. Nor do the findings or evidence show that when, after the close of his second term, he made payments to his successor in office, he gave any direction as to the application of such payments, or that any such application was specially made by the officer succeeding him, or by the county board. We do not decide whether such officer or county board could have made such application so as to bind the sureties of either bond, but simply state the absence of a fact which does not enter into the complications of the case. The application of the credits, under the special findings of fact, became a...