State v. Hill

• Court: Nebraska Supreme Court
• Writing for the Court: RYAN, C. J. NORVAL, J. POST, C. J. IRVINE, C. RAGAN, C.
• Citation: State v. Hill, 47 Neb. 456, 66 N.W. 541 (Neb. 1896)
• Decision Date: 05 March 1896
• Docket Number: 6952
• Parties: STATE OF NEBRASKA v. JOHN E. HILL ET AL

66 N.W. 541

47 Neb. 456

STATE OF NEBRASKA v. JOHN E. HILL ET AL

No. 6952

Supreme Court of Nebraska

March 5, 1896

ORIGINAL action in the supreme court to recover from defendants upon the official bond of John E. Hill for his second term as state treasurer, the sum of $ 236,364.62. There was a trial to a jury, resulting in a verdict for defendants. Heard on motion of the state for a new trial and on motion of defendants for judgment on the verdict. New trial denied and judgment entered in favor of defendants.

Omitting the justifications of the sureties, the bond upon which the action is based and the oath of office attached thereto are as follows, the italicized words in the bond being in the handwriting of John E. Hill, whose signature does not appear at the end of the instrument:

"Know all men by these presents, that we, John E. Hill, as principal, and Charles W. Mosher, D. E. Thompson, J. D Macfarland, Richard C. Outcalt, John Fitzgerald, J. E. Smith S. C. Smith, John Ellis, C. T. Boggs, N. S. Harwood, Frank Colpetzer, V. B. Caldwell, Saml. E. Rogers, John F. Coad, as sureties, are held and firmly bound unto the state of Nebraska in the sum of two million dollars, for the payment of which, well and truly to be made unto the state of Nebraska, we bind ourselves, our heirs, executors, and administrators jointly and severally by these presents sealed with our seals and dated this day of December, A. D 1890.

"The conditions of this bond are these: Whereas, at the last general election held within and for the state of Nebraska, the above bounden John E. Hill was duly elected to the office of treasurer of the state of Nebraska for the term of two years from the 8th day of January, A. D. 1891:

"Now, if the said John E. Hill shall well and truly, in all things, perform the duties of treasurer of the state of Nebraska for the state of Nebraska during the continuance of his term of office, as provided by law, then the above obligation to be void, otherwise to be and remain in full force and effect.

"CHARLES W. MOSHER

$ 300,000 00

"D. E. THOMPSON

150,000 00

"J. D. MACFARLAND

200,000 00

"RICHD. C. OUTCALT

150,000 00

"JOHN FITZGERALD

400,000 00

"J. E. SMITH

100,000 00

"S. C. SMITH

100,000 00

"JOHN ELLIS

100,000 00

"C. T. BOGGS

100,000 00

"N. S. HARWOOD

100,000 00

"FRANK COLPETZER

100,000 00

"V. B. CALDWELL

100,000 00

"SAML. E. ROGERS

200,000 00

"JOHN F. COAD

200,000 00

"JOHN H. MCCLAY

50,000 00

"JOHN B. WRIGHT

50,000 00

"STATE OF NEBRASKA, COUNTY OF LANCASTER.

"I do solemnly swear that I will support the constitution of the United States and the constitution of the state of Nebraska, and will faithfully discharge the duties of state treasurer of the state of Nebraska according to law, and the best of my ability; and that at the election at which I was chosen to fill said office I did not improperly influence in any way the vote of any elector, and have not accepted, nor will I accept or receive, directly or indirectly, any money or other valuable thing from any corporation, company, or person, or any promise of office for any official act or influence. JOHN E. HILL.

"Subscribed in my presence and sworn to before me this 8th day of January, A. D. 1891.

"AMASA COBB,

"Chief Justice."

[Indorsed:] "Official Bond. J. E. Hill, State Treasurer. Approved this 8th day of January, A. D., 1891. James E. Boyd, Governor of Nebraska. Approved this 8th day of January, A. D. 1891. John M. Thayer, Governor."

"STATE OF NEBRASKA, SECRETARY'S OFFICE. SS.

"Received and filed for record this 8th day of January, A. D. 1891, and recorded in Book "C," Bond Record Incorporations, at page 283.

"JOHN C. ALLEN,

"Secretary of State."

See opinions by RYAN, C., and NORVAL, J., for statement of the case.

The court instructed the jury as follows:

"1. By this action the state of Nebraska, as plaintiff, seeks to recover from J. E. Hill, as principal, and the other defendants, as sureties, on the official bond of the said Hill as treasurer of Nebraska for the term ending in January, 1893. Several questions have been controverted during the trial, although your inquiry will be confined to those issues to which your attention is especially directed by this charge, all others presenting questions of law for which the court is alone responsible.

"2. By taking the oath of office, procuring his official bond to be approved, holding the office of state treasurer and enjoying the emoluments thereof during the entire term, the defendant Hill is estopped to deny his liability on said bond, and such estoppel applies with equal force to the other defendants--his sureties.

"3. It is undisputed that Hill, at the close of his last term of office, indorsed and turned over to Joseph S. Bartley, his successor, in settlement, three certificates of deposit of the Capital National Bank aggregating $ 285,357.85, upon which the state has since realized $ 48,993.23, and no more. This suit is to recover $ 236,364.62, the difference between said sums, the state claiming that the receiving of said certificates by Bartley did not constitute a payment except for the said amount actually realized thereon. The uncontradicted evidence further discloses that Hill, as state treasurer, at the end of his first term had taken credit with the Capital National Bank upon open account the sum of $ 177,489.84, and also held certificates of deposit issued by said bank aggregating $ 90,000. The defendants contend that a part, if not all, of these credits was carried through his second term and merged into the certificates of deposit turned over by Hill to Bartley, claiming they are not liable in this suit for the amount of Hill's credit with said bank at the commencement of his second term, save to the extent that he may have converted the same into money.

"4. You are instructed that the payment of money in the hands of a state or county treasurer at the termination of his office, to his successor, can be effectuated only by the delivery of that which by the law of the land is recognized as money. The mere delivery of certificates of deposit issued by a bank upon which no money is realized is not a payment.

"5. It follows from the foregoing rule that the defendants are not chargeable in this action for the amount of the defendant Hill's credit as state treasurer with the Capital National Bank at the commencement of his second term, whether represented by certificates of deposit or open bank account, except for the money, if any, subsequently realized thereon by Hill.

"6. The burden of proof is upon the state to show affirmatively the amounts with which the defendant Hill is chargeable, and these amounts are defendant upon the aggregate sums of money actually received by him during his second term.

"7. The evidence shows a continuous course of dealing between Hill and the Capital National Bank during the second term of the former as state treasurer, and the contention of the state is that the first withdrawals by him in point of time should be applied in discharge of the amount of his credits at the commencement of said term. Hill, on the other hand, in effect, contends that his intention was at all times to withdraw the money last deposited, and that the transaction in evidence should be so construed. Should you find that there was an agreement or understanding between Hill and the bank with respect to the application of withdrawals by him, such agreement is binding upon the parties to this action. If, however, no such understanding existed, it is the right of the defendant Hill to direct the application to be made of such withdrawals, and it is not within the power of the state to make another or different application thereof.

"8. If the defendant Hill has fully accounted for and paid over all moneys belonging to the state which came into his hands during the period covered by the bond in suit, your verdict should be for the defendants. If Hill has not so accounted, then your verdict should be for the state for the amount disclosed by the evidence that he has received and not paid over, with seven per cent interest thereon from January 14, 1893, to the first day of the present term, to-wit, September 17, 1895."

In addition to the general verdict for defendants, a special verdict was returned under the directions of the court, the substance of which is set out in the opinion by NORVAL, J.

Motion for a new trial overruled and judgment rendered in favor of the defendants.

A. S. Churchill, Attorney General, George A. Day, Deputy Attorney General, for the state, E. Wakeley and G. M. Lambertson, of

The sureties are liable even if Treasurer Hill did not execute the bond. (United States v. Linn, 15 Peters [U.S.] 290; State v. Bowman, 10 O., 445; Trustees v. Sheik, 119 Ill. 579; Williams v. Marshall, 42 Barb. [N.Y.] 524; Parker v. Bradley, 2 Hill [N.Y.] 584; Haskins v. Lambard, 4 Shep. [Me.] 140; Scott v. Whipple, 5 Greenl. [Me.] 336; Keyser v. Keen, 17 Pa. 327; Johnson v. Weatherwax, 9 Kan. 75.)

The name John E. Hill, written by him in the body of the bond, is a sufficient execution on his part. (Taylor v. Dobbins, 1 Strange [Eng.] 399; Saunderson v. Jackson, 2 Bos. & Pul. [Eng.] 238; Schneider v. Norris, 2 Maule & Selw. [Eng.] 286; Morison v. Turnour, 18 Ves Ch. [Eng.] 175; Bleakley v. Smith, 11 Sim. [Eng.] 150; Merritt v. Clason, 12 Johns. [N.Y.] 102; 1 Brandt, Suretyship & Guaranty, p. 151; Clason v. Bailey, 14 Johns. [N.Y.] 484; Davis v. Shields, 26 Wend. [N.Y.] 341; Commonwealth v. Ray, 3 Gray [Mass.] 441; Penniman v. Hartshorn, 13 Mass. 87; Schmidt v. Schmaelter, 45 Mo. 502; Wise v. Ray, 3 Greene [Ia.] 430; McConnell v. Brillhart, 17 Ill. 354; Barry v. Coombe, 1 Peters [U.S.] 640; Palmer v. Grant, 4 Conn. 389; Rhode v. Louthain, 8 Blackf. [Ind.] 413; ...