Thomssen v. Hall Cnty.

• Decision Date: 06 February 1902
• Parties: THOMSSEN ET AL. v. HALL COUNTY.
• Court: Nebraska Supreme Court

63 Neb. 777

89 N.W. 389

THOMSSEN ET AL.

v.HALL COUNTY.

Supreme Court of Nebraska.

Feb. 6, 1902.

Syllabus by the Court.

1. An action brought against a county treasurer and his bondsmen for the recovery of moneys alleged to have been converted by such treasurer is not prematurely brought, if commenced after the termination of the office of such treasurer, and after he has given a bond and qualified as his own successor in office.

2. In this state a county treasurer is an insurer of the funds which come into his hands ex officio, and such treasurer and his bondsmen cannot, in an action by the county to recover funds not accounted for, plead that such funds were lost, without any fault or neglect on the part of the treasurer, by the failure of a bank in which they were deposited for safe-keeping only, and in good faith, believing such bank to be solvent.

3. In an action by a county against a county treasurer and his bondsmen to recover funds alleged to have been converted by the treasurer, it is not error to compute interest on such funds from the date at which, under the terms of the statute and the official bond, the funds should have been accounted for and turned over to the successor in office of such treasurer.

Commissioners' opinion. Department No. 1. Error to district court, Hall county; Sedgwick, Judge.

Action by Hall county against William Thomssen and another. Judgment for plaintiff. Defendants bring error. Affirmed.W. H. Thompson and O. A. Abbott, for plaintiffs in error.

William S. Pearne, Charles G. Ryan, and R. R. North, for defendant in error.

KIRKPATRICK, C.

This is an action brought by the county of Hall against William Thomssen and the Fidelity & Deposit Company of Maryland, a corporation, defendants. Plaintiff in its petition recited the election of the defendant Thomssen to the office of county treasurer of Hall county; the execution, delivery, and approval of the bond upon which plaintiff in error the Fidelity & Deposit Company was surety; and the fact that Thomssen entered upon the discharge of his duties as county treasurer, and held the office for the term of two years, and until the 4th day of January, 1898; that he had received from his predecessor in office and from other sources, as county treasurer, the sum of $357,317.89, and that he had paid out and disbursed, together with what he had on hand and turned over to himself as his own successor, the sum of $335,332.28, and no more, leaving as a balance due the county the sum of $21,985.61, for which amount, with interest at the rate of 7 per cent. per annum from January 4, 1898, the county prayed judgment. Plaintiffs in error filed separate answers, in which they admitted the election of Thomssen as county treasurer, and the execution and approval of his bond as set out in the petition, and in addition set out two defenses, each of which applies to a portion of, and, taken together, cover, the money alleged to have been converted: First, it is alleged that the Bank of Commerce of Grand Island had, during the term of office of the predecessor of Thomssen, given a bond to the county, and been made a county depository for the sum of $10,000, which had been deposited therein by the predecessor of Thomssen, and which sum was a part of the amount sought to be recovered by the county; that, for reasons pleaded in the answer, said sum had never been turned over to Thomssen, but still remained in the Bank of Commerce, on deposit to the credit of the county. To this portion of the answer a reply was filed by the county, which, in effect, admitted the allegations of the answer, and pleaded that the predecessor of Thomssen had given him a check for the $10,000 so on deposit, and that Thomssen had presented the check at the bank, and had it certified, and allowed the funds to remain on deposit, and that Thomssen and his bondsmen by such act became liable to the county for the same. To this reply plaintiffs in error demurred, which demurrer was by the trial court sustained; the court's ruling thereon not being presented for consideration in this case. As to the remainder of the money alleged in the petition to have been converted by plaintiff in error Thomssen, it was alleged in the answers, in substance, that the Bank of Commerce was a corporation duly incorporated as a bank, and was at the time of his election, and for many years prior thereto had been, engaged in the banking business in the city of Grand Island; that it was then, and for many years past had been, generally known as a financially sound and safe depository for moneys, and was then believed to be safe; that at the time Thomssen entered upon the discharge of his duties as treasurer the county had provided no safe or secure place for the deposit or keeping of large sums of money, but had provided simply a fireproof safe and vault suitable for the purpose of keeping the records and valuable papers of the county, to prevent their loss and destruction by fire, and that the safe or vault was not a secure, safe, or suitable place in which to keep moneys of the county; that there were no banks in the county which had given bonds and were lawful depository banks; that plaintiff in error Thomssen, in good faith, and for the sole purpose of securely keeping and preserving the moneys belonging to the county, deposited a part of the moneys which came into his hands as treasurer in the Bank of Commerce to his credit as county treasurer, and not otherwise, and that such deposit was with the full knowledge and consent of the board of supervisors of the county, and that on or about the 20th day of January, 1896, the Bank of Commerce failed, suspended payment, closed its doors, and surrendered all of its assets and property into the hands of the state banking board, and that thereafter a receiver was appointed, who paid as dividends on the money so deposited the sum of $6,415.05, leaving a balance in said bank to the credit of the county treasurer of $9,450.38; that plaintiff in error Thomssen, by reason of the premises, was not liable for this balance; that he had acted in good faith and with due care and diligence; and that the money was lost without any fault or negligence on his part. A jury was called to try the issues, and plaintiffs in error tendered evidence in support of the above set out portions of their answers, whereupon defendant in error interposed a demurrer ore tenus, which was sustained. Plaintiffs in error excepted to this ruling, and, no further evidence being offered or received, the court instructed the jury to return a verdict for the county in the sum of $9,450.38, with interest at 7 per cent. thereon from January 4, 1898. Judgment was entered against plaintiffs in error on this verdict, separate motions for new trials were made and overruled, and the case brought to this court upon separate petitions in error for review.

Plaintiffs in error, in their brief, contend that the judgment of the trial court is erroneous for three reasons: First, because the action was prematurely brought; second, because the answer hereinbefore quoted constituted a good defense; and, third, because the court erred in allowing interest at 7 per cent. from January 4, 1898, rather than from August 4, 1898, the date of the commencement of the suit. These assignments of error will be considered in their order.

In support of the first assignment it is contended that it was the duty of the county of Hall, under the provisions of section 1, art. 2, c. 18, Comp. St. 1901, entitled “Counties and County Officers,” and under the provisions of section 94, art. 1, of the same chapter, on the 4th day of January, 1898,--the date on which the term of Thomssen as county treasurer expired,--to have required him to account for the funds in his custody and control, and that, upon his failure so to account, it was the duty of the county board to remove him from office, and appoint a successor as county treasurer, and that because the county board failed to do this, and plaintiff in error Thomssen succeeded himself by re-election, there was no officer or person who could make a legal demand to...