State v. Moore

• Decision Date: 08 April 1933
• Docket Number: 31069.
• Citation: 20 P.2d 518,137 Kan. 396
• Parties: STATE ex rel. WELTMER, County Attorney, v. MOORE et al.
• Court: Kansas Supreme Court

20 P.2d 518

137 Kan. 396

STATE ex rel. WELTMER, County Attorney, v. MOORE et al.

No. 31069.

Supreme Court of Kansas

April 8, 1933

Syllabus by the Court.

Surety on official bond of probate judge held not liable for moneys delivered to judge by administrators and executors, or originally to predecessors, representing accumulation of distributive shares and bequests remaining unclaimed for one year or more (Rev. St. 1923, 19--1101, 22--932).

Surety on official bond of probate judge held not liable for fund turned over to him by order of district court, outside scope of official duties (Rev. St. 1923, 19--1101).

Monetary distributive shares and bequests remaining unclaimed in hands of administrators or executors for one year should be delivered to county treasurer (Rev. St. 1923, 22--932).

1. In an action against the surety on the official bond of a probate judge for his failure to account for certain moneys which came into his hands during his incumbency of the office, it is held:

(a) The surety was not liable for moneys which administrators and executors had delivered to the probate judge, or to his predecessors and by them successively delivered to him which moneys were an accumulation of undistributed shares and bequests which the probate judge had no official power or right to accept.

(b) The surety was not liable for a balance of funds turned over to him by order of the district court since it was no part of his duty as probate judge to receive such moneys officially.

(c) When monetary distributive shares and bequests have remained unclaimed in the hands of administrators or executors for one year, it is the duty of those officials to deliver such moneys to the county treasurer. They have no right to turn such moneys over to the probate judge and he has neither official power nor right to receive the same; and the surety on his official bond is not bound for any defalcation of the probate judge in respect to any such moneys thus irregularly and unlawfully received by him.

2. Under the rules of law stated in syllabus 1 and the stipulation of counsel pertaining thereto, the costs of this appeal are ordered to be taxed to plaintiff.

Appeal from District Court, Jewell County; William R. Mitchell, Judge.

Action by the State, on the relation of L. E. Weltmer, County Attorney of Jewell County, against Robert A. Moore and another. From a judgment in favor of the plaintiff, the defendant National Surety Company appeals.

Judgment modified, and as modified, affirmed.

James M. Moore, of Kansas City, Mo., and A. Teeple and George E. Teeple, both of Mankato, for appellant.

Manford Holly, Co. Atty., of Mankato, for appellee.

DAWSON Justice.

This was an action against Robert A. Moore, ex probate judge of Jewell county, and his surety, for his failure to account for certain moneys which came into his hands during his incumbency of the office of probate judge.

After the issues were formulated by pleadings, the material facts were agreed to by stipulation.

It appears that one A. Teeple was probate judge of Jewell county from 1914 until 1923. Teeple was succeeded by one John W. Ross who served until 1929, at which time he was succeeded by defendant Moore. Certain moneys came into the hands of Teeple informally, which he delivered to Ross, his successor; and these moneys with additions thereto were delivered by Ross to defendant. It is these moneys and other items of similar sort which defendant Moore received during his incumbency of the office aggregating $3,635.49, which he failed to account for, and which got him into the toils of the civil and criminal law and eventually landed him in the penitentiary.

In the course of the present litigation the state has collected from Moore the sum of $709.02, and the defendant surety company has paid $2,120.63 on account of Moore's defalcations. Of the balance of $805.84 due the state for the benefit of whoever is entitled thereto, the principal legal question of present concern is whether the defendant surety is liable therefor. The trial court ruled affirmatively, and judgment was entered accordingly.

The surety company appeals, contending that Moore did not receive the various items composing this balance of $805.84 by virtue of his office as probate judge, and in consequence defendant is not liable therefor under the bond it executed to insure his official integrity. The pertinent provision of the bond reads: "Now, therefore, if the said Robert A. Moore shall faithfully perform all the duties of his said office required of him by law and faithfully apply and pay all moneys and effects that may come into his hands in the execution of the duties of his said office, then the above obligation to be null and void, otherwise to remain in full force."

This obligation of the bond was in accord with the terms and conditions prescribed by the statute (R. S. 19--1101). To determine the liability of the surety for Moore's breach of his statutory duty "for the faithful application and payment of all moneys and effects that may come into his hands in the execution of the duties of his office," we must scrutinize the particular items...