State v. Midland State Bank

• Decision Date: 15 June 1897
• Citation: 52 Neb. 1,71 N.W. 1011
• Parties: STATE v. MIDLAND STATE BANK ET AL.
• Court: Nebraska Supreme Court

52 Neb. 1

71 N.W. 1011

STATE

v.MIDLAND STATE BANK ET AL.

Supreme Court of Nebraska.

June 15, 1897.

Syllabus by the Court.

1. It is not within the power of the treasurer of a school district, by a general deposit of funds held by virtue of his office, to create between such district and his banker the relation of debtor and creditor.

2. A banker, by receiving on deposit from a school-district treasurer funds known to be held by the latter in his official capacity, becomes thereby a trustee for the beneficial owner with respect to such funds; and the same may, upon his insolvency, be recovered by the owner as a preferred claim against his estate.

Appeal from district court, Douglas county; Keysor, Judge.

Action by the state of Nebraska against the Midland State Bank of Omaha. Joseph W. Thomas was appointed receiver, and appeals from an order allowing the claim of school district No. 5 of Douglas county. Affirmed.John L. Kennedy, for appellant.

Byron G. Burbank and McCoy & Olmsted, for the State.

POST, C. J.

This is an appeal by the receiver from an order of the district court for Douglas county preferring the claim of appellee, school district No. 5 of said county, against the Midland State Bank, recently impounded on motion of the state banking board. The facts essential to an understanding of the controversy are as follows: On the 12th day of February, 1896, John Bondesson, as treasurer of the appellee district, deposited in the bank above named the sum of $1,308.08, money of said district, and held by him as such; and he subsequently made other deposits of funds intrusted to him as such treasurer, amounting to $2,241.83. He also checked against his said account from time to time in payment of orders or warrants drawn by the district board, so that there was to his credit in said bank when it passed into the hands of the receiver the sum of $1,463.86. The original credit was given to Bondesson as treasurer, and the pass book in which the several credits were entered by the cashier shows an account between the bank and the school district. The inference is therefore irresistible that the bank was at all times advised of the fact that the money deposited belonged, not to Bondesson, but to appellee. The powers and duties of school-district treasurers are defined by section 5, subd. 4, c. 79, Comp. St., entitled “Schools,” in the following language: “It shall be the duty of the treasurer of each district to apply for and receive from the county treasurer all school moneys apportioned to the district, or collected for the same by said county treasurer, upon order of the director countersigned by the moderator of each district, all moneys received by him.” And in section 9 of subdivision 11 appears the following inhibition upon the powers of the treasurer: “School district treasurers are forbidden to lend or use any part of the school moneys which may be in their hands under penalty of fine and imprisonment under the provisions of the statute regarding embezzlement.” No question is here raised of the right of a school-district treasurer, or other officer charged...