Board of School Directors v. Kuhnke

WiNsnow, 0. J. The action should have been brought in the corporate name of tbe district, viz. “School District Nuin--ber Three of tbe Town of Lake.” ’ Sec. 417, Stats. 1911. Tbe .error in tbe title of tbe action, however, is not substantial. Tbe district board is made up of the director, the treas-' urer, and tbe clerk (sec. 432, Stats. 1911), and it is tbe duty of tbe director to prosecute actions for breach of tbe treasurer’s bond “in tbe name of the district.” Sec. 442, Stats. 1911. A recovery in tbe name of the district' board instead of in tbe name of tbe district itself would unquestionably bar any second action for the same breach, hence tbe inaccuracy of tbe name is not prejudicial. Tbe trial judge held that, notwithstanding Peterson’s failure to give a new bond after bis re-election in July, 1908, be continued to be treasurer until bis death, under that clause of sec. 443, Stats. 1911 (as construed by State ex rel. Wheeler v. Nobles, 109 Wis. 202, 85 N. W. 367), which provides that tbe treasurer shall bold bis office until bis successor be elected or appointed and qualified. We see no reason to doubt tbe correctness of this conclusion. He also held, under Supervisors v. Kaime, 39 Wis. 468, and Fond du Lac v. Moore, 58 AVis. 170, 15 N. W. 782, that the liability of tbe sureties “goes no further than as to tbe $1,299.70 in bis bands in July, 1908.” Upon these premises tbe judge concluded that tbe sureties could not be held for tbe deficit existing at tbe time of Peter [346] son’s death, but must be held for the $1,299.70 in Peterson’s hands in July, 1908, because “the breach occurred when, by the failure to file his new bond within ten days after his reelection, July 3, 1908, his office became vacant and he then failed to pay the amount of $1,299.70 to some person lawfully entitled to receive it.” -We have been unable to see how this conclusion can be logically reached. If, as the court held (and rightly held under the doctrine of Stale ex rel. Wheeler v. Nobles, supra), Peterson remained treasurer until the time of his death, he was the man and the only man entitled to hold the moneys of the district during' that entire time. There was no person lawfully entitled to receive or hold those moneys for the district except himself. No other officer or board has a right to hold a dollar of the moneys of the district except the treasurer, See. 444,' Stats. 1911. There is no logical escape from the conclusion that there was no breach, of the bond by reason of his neglect to pay over the amount in his hands in July to some other person, for the very good reason that there was then no person entitled to receive the money from him, but on the contrary he was entitled to hold it himself until his successor was elected and qualified. Under the decisions in State ex rel. Wheeler v. Nobles, supra, and Supervisors v. Kaime, supra, Peterson was de facto and de jure treasurer during the entire time which he acted, but the sureties upon the bond in suit were only held until the expiration of Peterson’s term in July, 1908, and for such further time as was reasonably necessary for the election and qualification of his successor. Such successor should have been appointed by the remaining members of the district board at the expiration of ten days after Peterson’s election, when it appeared that he had failed to file a new bond. Secs. 433, 443, Stats. 1911. No such appointment was made and so Peterson rightly held over, under the doctrine of the Nobles Case, but that fact [347] did not extend the obligations of the bond beyond the reasonable time aforesaid, and that time had long expired before any breach of the bond is shown to have taken place, — in fact, the only breach shown is the breach which occurred at Peterson’s death, more than two years afterwards. During those years Peterson had rightfully paid out nearly $8,000 of school moneys. Thus it is rendered certain that' long before this breach occurred he had paid out far more than the sum of $1,299.70, which was presumptively in his hands in July, 1908, when he entered on his last term and should have furnished a new bond. In'any view of the case, we have been unable to perceive how the sureties can be held liable. By the Court. — Judgment reversed, and action remanded with directions to dismiss the complaint. Timlin, J., dissents.