School District No. 9 of Apache County v. First National Bank of Holbrook, Civil 4330

• Decision Date: 15 October 1941
• Docket Number: Civil 4330
• Citation: 118 P.2d 78,58 Ariz. 86
• Parties: SCHOOL DISTRICT No. 9 OF APACHE COUNTY, and APACHE COUNTY, Appellants, v. FIRST NATIONAL BANK OF HOLBROOK, a Corporation, Appellee
• Court: Arizona Supreme Court

118 P.2d 78

58 Ariz. 86

SCHOOL DISTRICT No. 9 OF APACHE COUNTY, and APACHE COUNTY, Appellants, v. FIRST NATIONAL BANK OF HOLBROOK, a Corporation, Appellee

Civil No. 4330

Supreme Court of Arizona

October 15, 1941

APPEAL from a judgment of the Superior Court of the County of Navajo. Richard Lamson, Judge. Judgment reversed and case remanded with instructions.

Messrs Wilson, Compton & Wilson, for Appellants.

Mr. Guy Axline and Messrs. Armstrong, Kramer, Morrison & Roche, for Appellee.

OPINION

LOCKWOOD, C.J.

The County of Apache and various school districts in said county as plaintiffs, filed some thirteen cases against First National Bank of Holbrook, called defendant, to recover moneys of the plaintiffs alleged to have been fraudulently and illegally paid to defendant on school warrants fraudulently, wrongfully and illegally issued. Each action contained a number of counts so that altogether some two hundred and seventy-eight warrants were involved therein. In each case defendant filed a motion to dismiss and a general and various special demurrers. The trial court denied the motion to dismiss and overruled all of the special demurrers, but sustained the general one based on the ground that the complaints failed to state a cause of action, and judgment was rendered for defendant. Some time thereafter plaintiffs moved for an order vacating the judgment and granting leave to plaintiffs to amend their complaint, which motion was denied, and this appeal has been taken.

By leave of this court a consolidated abstract of record was filed in the thirteen cases and the briefs argued them as one. The first question for our consideration is whether the trial court erred in refusing to vacate the judgment and grant leave to plaintiffs to amend. Under section 21-448, Arizona Code 1939, a party may amend his pleadings once as a matter of course before a responsive pleading is filed otherwise only by leave of court or the consent of the adverse party. It was, therefore, within the sound judicial discretion of the trial court whether the suggested amendment should be allowed. Upon an examination of the amendment, we are of the opinion that it would not have materially affected the question of whether the complaints stated a cause of action. Such being the case, we think the trial court did not abuse its discretion in denying the motion to vacate the judgment and permit an amendment to the pleadings. We, therefore, consider the issue on the merits which is whether the complaints stated causes of action against defendant.

The first count of the complaint in case No. 4330, after setting up the capacity of the various parties, proceeds as follows:

"That on or about the 25th day of July, 1933, said defendant presented to the then Treasurer of said plaintiff Apache County, at St. Johns, Arizona, for payment, a certain false and fraudulent instrument in writing, to-wit, a certain school warrant drawn on said Treasurer, which said warrant, together with the endorsement thereon, is in words and figures following, to-wit: (showing face of warrant), and on the back of said warrant appear the following endorsements:

"Presented and registered 7/1/33. Not paid for want of funds. Interest at 6% per annum from date of registration. L. R. Gibbons, County Treasurer. "Monico Gonzales "A. H. Garcia.

"That said warrant so presented for payment by said defendant as hereinabove set forth and so paid by said Treasurer as hereinafter alleged, was, on or about the 30 day of June, 1933, drawn by Amelia Hunt Garcia, the then elected, qualified and acting School Superintendent of plaintiff County of Apache, and was delivered by her to said defendant wilfully, wrongfully and without authority of law, and with the intent then and there and thereby on the part of said Garcia and said defendant to defraud plaintiffs and each of them, and fraudulently and in breach of, and in violation of the trust of said Garcia as School Superintendent of said County of Apache, and without being authorized so to do by any voucher or other instrument in writing signed by two or more Trustees of plaintiff School District, or by plaintiff County of Apache, or in any manner authorized by law; and that at the time said warrant was drawn by said Garcia and was received by said defendant, and was presented for payment by said defendant to the Treasurer of Apache County, and paid as hereinafter alleged, neither of the plaintiffs was indebted to said defendant in the sum of money set forth in said warrant, nor in any other sum, nor had the defendant at any of the times herein mentioned, or prior thereto, filed or asserted any claim or demand against the plaintiffs, or either of them, because of any sum of money claimed by said defendant to be due it upon said warrant from said plaintiffs or either of them; and that all of said facts hereinabove set forth were known by said defendant, or could have been known by it by the exercise of reasonable diligence.

"That said defendant did not, either upon the presentment for payment or payment of said warrant, as hereinabove alleged, or at any other time whatsoever, disclose to plaintiffs or either of them, the above alleged facts or any of them, and that said Treasurer did, on or about the 25 day of July, 1933, pay, at St. Johns, Apache County, Arizona, to said defendant the amount directed to be paid in said warrant, together with interest thereon in the sum of $.04 from funds then in possession of said Treasurer of Apache County belonging to plaintiffs; and that by reason of said illegal and fraudulent acts on the part of said Amelia Hunt Garcia and said defendant, the plaintiffs and each of them were defrauded and suffered damage in the total sum of $10.04, no part of which has been paid to plaintiffs or either of them, and that the said defendant received and converted to its own use without authority of law, wrongfully and fraudulently the amount of money paid to it upon said warrant as hereinabove set forth."

The remaining counts in No. 4330 and the counts in the other complaints followed the same general form except as to dates and details of the warrants involved and other allegations of facts which it is claimed make such warrants illegal. Some state that the warrants were drawn on unapportioned school funds; some that they were not endorsed by the payee; some that they bore forged endorsements; some that they were endorsed by only one of two or more payees; some that they were drawn for a purpose not authorized by law; and some that they were not duly endorsed by the person entitled to receive the same. They then continue with the allegation of a demand on defendant for repayment, and that the fraudulent and unlawful acts set forth in each of the complaints were not known to plaintiffs nor did they have reasonable knowledge thereof until March 1, 1935.

It will be seen that some of these allegations go to the original validity of the warrants and some to the method of their transfer to defendant. We consider first the objections to their validity. These objections are (a) no voucher signed by two of the trustees was issued to the county superintendent for the payment shown by the warrant; (b) the warrant was not drawn on funds already apportioned to the district; and (c) the warrant was drawn for a purpose not authorized by law.

The material parts of the law governing the issuance of school warrants, as it stood at the time of the ones involved herein, as contained in the 1928 code, read as follows:

"§ 992. Qualifications; powers and duties.... The superintendent shall apportion the school money to each district of his county, and notify the county treasurer, in writing, of the amount apportioned to each district, and notify, in writing, the trustees of each school district in his county the amount apportioned to their districts. On the order of the board of school trustees of any district, he shall draw his warrant on the county treasurer for all necessary expenses against the school fund of any such district;... Upon receipt of such voucher the county superintendent shall draw his warrant upon the county treasurer in favor of the parties, and for the amount stated in such voucher...."

"§ 993. When may appoint teacher and open school. When there is sufficient money in the fund of any school district to maintain school therein for eight months, if the trustees fail to have such school kept, the superintendent shall appoint a teacher and open and keep open such school, and may draw his warrant upon the fund of such school district for the expense incurred."

"§ 995. May cause school building to be repaired. The county school superintendent may... require the trustees... to repair the school buildings... abate a nuisance... if... can be done... not exceeding one hundred dollars, and there is a sufficient amount of money in the treasury to the credit of the district.... if the trustees neglect to make such provisions, he may... pay for it on his warrant on the county treasurer, payable out of the money to the credit of the district; provided, said warrant shall be countersigned by the chairman of the board of supervisors."

"§ 1013. Two members must sign warrants. No order on any county school superintendent for any teacher's salary, or other expense, shall be valid unless signed by at least two members of the board of trustees."

"§ 1026. Purposes for which school money may be used. Boards of trustees shall use the school money received during the school year from the state and county apportionment exclusively for the payment of salaries of teachers and other employees of the district and contingent expenses for the school year. If a balance remain in the school fund of a district after the expense of maintaining...