Blake v. Comm'rs of Johnson County

The opinion of the court was delivered by Brewer, J.: Action on county treasurer’s bond. The.first question arises on these facts: Pleadings were duly filed— petition, answer, and reply. The petition alleged the execution of a bond payable to the county commissioners, setting out the bond in full. This under the law in force at the time, (Comp; Laws 1862, p.428, §104,) was the proper bond. No denial under oath was filed. Therefore the execution of such a bond was admitted. The case however was tried on an agreed statement of facts, and the first fact in the statement showed the execution of a bond payable to the state of Kansas. This agreed statement was signed by the attorneys, and to it was attached an affidavit of the county attorney alleging all the matters prescribed infection 525 of the code, which provides for submitting a controversy without action. And the claim is, that this agreed statement, fully satisfying all the requirements of said section, must be considered as having superseded the pleadings, and as proceeding under said section; and that therefore the only matters to be considered are the facts in the statement. We cannot assent to this view, and for several reasons. There was an action pending. There was no pretense of any dismissal. There was no determination of the issues raised by those pleadings, [268] otherwise than by the judgment herein. The agreed statement does not purport on its face to supersede the pleadings, or to be a matter outside of the action then pending. The agreed statement is of facts embraced in the issues raised by the pleadings. The journal entry of the trial reads, that the parties “submitted their cause to the court for trial and the determination of all the issues, as well of law as of fact, made by the said pleadings on file herein, upon the agreed statement of facts signed by the parties respectively.” A similar recital appears in the entry of the judgment. Now it seems to us a fair deduction, that court and parties alike looked upon this agreed statement as made in the case already pending, and as simply dispensing with further or other evidence in the case, and that it must be so regarded in this court. Of course then, it stands as admitted, that the proper bond was given. Do the further facts show any liability upon this bond ? These are the facts: At the October term 1868, the State of Kansas obtained adjudgment against one Thomas Casad and his sureties, upon a forfeited recognizance for the sum of $5,000 in the district court of Johnson county, which judgment was never vacated, reversed, set aside, or modified. On the 23d of June 1869, said J. Henry Blake, as county treasurer, received from the judgment-debtor the sum of $4,900 of Johnson county “scrip,” or written promises to pay $4,900, commonly called “scrip,” at the face thereof, in full payment and satisfaction of said judgment — $100 having been, prior thereto, paid to John T. Burris, county attorney, as his fees on said judgment of $5,000. Said $4,900 in “scrip,” less the lawful commission of said treasurer, was placed to the credit of the “school fund” of Johnson county, by said treasurer; and afterward the said treasurer (J. Henry Blake) delivered said $4,900 of county “scrip” to one Rev. C. E. Lewis, the county superintendent of schools of Johnson county, who discounted said “scrip” in the market at and for 75 cents on the dollar; that is to say, he sold said “scrip” at 25 cents less than its face.. Johnson county “scrip” then, and at the time said J. Henry Blake received said $4,900 in “scrip” from the judgment-debtor, and at the time said Lewis as superintendent sold same, was selling, generally, in the market at such discount. [269] Said C. E. Lewis, county superintendent, after the sale of the $4,900 of “scrip” as aforesaid, paid to J. Henry Blake, treasurer, the sum of $3,675, the proceeds of said sale of county “scrip,” which the said treasurer placed to the credit of the common-school fund of Johnson county, and which said sum was duly apportioned among the various school districts in Johnson county by said Lewis, and was paid out by the said treasurer to the proper officers of said school districts upon the written orders of said.superintendent, from time to time. Said treasurer retained as his commission, on the $4,900 of “scrip” the sum of $147, and placed the residue, being the sum of $4,753 in “scrip,” to the credit of the “school fund,” and disposed of it as hereinbefore stated. There has been no settlement of the foregoing matters between the plaintiff and defendants, or either of them; and the said J. Henry Blake, defendant herein, waives all statutes of limitations in this case. Upon these facts we remark, in the first place, that it has been already decided that the county commissioners were proper party plaintiffs in an action like this, although the funds when collected do not belong to the county for general use, but only for distribution to the various school districts. Comm’rs Jackson County v. Craft, 6 Kas. 145. In the second place, the county treasurer is by statute made the proper party to collect the moneys due upon such a judgment of forfeiture, as is disclosed by the agreed statement. Gen. Stat. 873, §332; Gen. Stat. 929, §75. Having authority to collect, if he receive anything other than money in full satisfaction- and discharge of the judgment, he renders himself liable for the amount thereof. If in the case before us he had taken a certain number of wagons in satisfaction and discharge of this judgment, he could not have turned the wagons over to the county, or to the school districts, and thus relieved himself from responsibility. This is not like the case in which a treasurer assumes a personal trust toward the judgment-debtor by receiving property upon a promise to dispose of it and apply the proceeds on the judgment, in which case he perhaps might not be responsible for anything more than the proceeds; nor is it a case in which there was only a partial [270] collection of the judgment. He was under no obligations to receive this scrip in payment of the judgment; and if he did so, and satisfied and discharged it, he must make good the amount thereof. We remark again, that he could not discharge himself from liability by turning the scrip over to the county superintendent. His duty was to pay over school moneys to the school-district treasurers, and he had no authority to intrust either money or scrip to the superintendent. Gen. Stat. 929, §§ 74, 75. And finally, it was unnecessary to prove a special demand, for the act of receiving the scrip in satisfaction of the judgment, and then delivering it to the county superintendent, was wrongful. If the testimony had disclosed simply that he had received the full amount of the judgment in money, it would doubtless be incumbent on the county to prove that he had failed to pay over this amount to the district treasurers, or to his successor in office. But the condition of his bond was that he should “ faithfully and promptly perform the duties of his said office,” should “ well and truly pay according to law all moneys which shall come to his hands as treasurer,” and should “deliver to his successor in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto, or belonging to his said office.” Now he had not faithfully performed the duties of his office, for he had received scrip, when he should have received money; he had given this scrip to a person unauthorized to receive scrip or money from him, and in return had received a less amount in money. This was a breach of official duty, and prima fade entailed a loss. If notwithstanding, he claims that he made good this loss, and reimbursed the county, it is for him to make this appear. It may perhaps be proper to add, that as this action was not brought for more than two years after the expiration of the term of office for which this bond was given, and as the constitution provides that a county treasurer shall not hold more than two terms in succession, it is apparent that he had ceased to be county treasurer before the commencement [271] of this action. At any rate, the term for which this bond was given had long since expired. We see no error in the proceedings, and must affirm the judgment. All the Justices concurring.