Commissioners of Jackson County v. Craft , 6 Kan. 145 ( 1870 )

The opinion of the court was delivered by

Valentine, J.:

1. Evidence, wit-’ This is a petition in error to reverse an order of the district court of Shawnee county, setting aside the report of the referee. The action x was brought by the plaintiffs in error on the official bond of R S. Craft, Treasurer of Jackson county. The other defendants were the sureties of said Craft. The case was referred; a trial was had before the referee, and during the trial the defendant took a number of exceptions to the ruling of the referee.

Jacob Iiixon, the chairman of the board of commissioners of Jackson county, was called and examined as a witness on the part of the plaintiffs in error. Said Iiixon testified, among other things, that he was present and helped to make the final settlement with Craft, and that he then supposed the settlement was all right. The witness, during his examination, held in his hand the record of said settlement, and gave some other testimony relating thereto. On cross-examination, the defendants asked the witness the following questions : “ At the time you made this settlement with Mr. Craft did you find a single item that is now embraced in that settlement to be wrong ?” “ Can you swear- now that there are any errors in that settlement?” “ Were not all the accounts and charges of Mr, Craft carefully examined by you at the time of making the final settlement ?” “ At the time of making the final settlement with Mr. Craft did you not make a careful examination of all his accounts, and find them correct ?” Objections were made to these questions by the plaintiffs, and the referee refused to allow them to be answered by the witness.

—Extends to all by eximuSn m ciiieí. The testimony of the witness, given on his examination in chief, was probably, just what the plaintiffs expected, and possibly just what they desired. The plaintiffs admitted the settlement, but desired to show that there were mistakes in the same; and in order to do this it was necessary to show that the parties making the settlement were, at the time of making the same, ignorant of any errors occurring therein — for if they were not so ignorant, there could not, of course, be any mistake. After the witness had testified con corning said settlement, and given his opinion with reference to the same at the time the settlement was made, the defendants undoubtedly had a right to cross-examine him. They had a right to cross-examine as to the nature and extent of the examination he gave relative to the different accounts, and the items of each account, and to ascertain fully the opinion he had of each item that was claimed to be erroneous. They had a right to know whether he was really ignorant of the items, as the plaintiffs claimed, and if he was so ignorant, whether he had used the proper diligence to avoid such ignorance. But if the plaintiffs were really mistaken as to the testimony of said witness; if said testimony was really different from what they expected it would be, and was solely in favor of the defendants, still we know of no rule of evidence that would prevent the defendants from a cross-examination of the witness upon such testimony. But the defendants would, of course, be confined to facts and circumstances connected with the matters stated in the examination in chief. The decision of this question disposes of the-.whole case, and therefore we do not think it is necessary to decide the other question raised in the case, or even to mention those unimportant questions, which will probably not be raised in the case again.

2. County Treas-Si moneys Üeoeived II. There is one important question, however, which will undoubtedly be raised again on another trial of the action, which we will now consider. The ' question is, whether the board of county commissioners can maintain an action against the county treasurer and his sureties, on the treasurer’s official bond, for all moneys which the treasurer has received by virtue of his office, and failed and refused to pay over to his successor in office, or to otherwise account for, whether said moneys belong to the State, county, township, school district, or other fund; or, whether the board of county commissioners are confined to the county fund alone. It is our opinion that the board of county commissioners are not confined in their action to the county fund alone, but may sue for all delinquencies.

Craft held .his office from January 8th, 1864, to January 9th, 1866. This suit was commenced September 10th, 1866. Hence the following statutes referred to, are the statutes in force during his term of office, and when this suit was commenced. The county treasurer’s bond is given to “ The Board of County Commissioners,” (§ 104, Comp. L. 1862, p. 428,) in which name counties'sue and are sued; (§ 5, p. 409.) The county treasurer’s bond is intended to cover all the different funds that come into his hands by virtue of his office; (§ 105, p. 429.)

The code of civil procedure provides that “ A person with whom, or in whose name, a contract is made for the benefit of another, may bring an action without joining with him the person for whose benefit it is prosecuted.” (§34, Comp. L., p. 129.) The treasurer, in his bond, agrees to “ render a just and true account of all moneys which shall come into his hands as treasurer, whenever required by the board of county commissioners, or by any provision of law.” (§ 105, p. 429.) “ The. county clerk, in keeping the accounts of his county with the county treasurer,” charges him with all the different funds the treasurer receives, and credits him with all he pays out; (Laws of 1864, p. 70, §2; Laws of 1863, p. 103, §16; Comp. L., p. 865, § 31.) The statutes also provide that “ The said treasurer shall keep a just and true account of the receipts and expenditures of all moneys which shall come into his hands by virtue of his office, in a book or books to be kept by him for that purpose, which books shall be open at all times for the inspection of the board of county commissioners, or any member thereof, and to all county and territorial officers; and, at the annual meeting in July, of the said board of commissioners, or at such other time as they may direct, he shall settle with them his accounts as treasurer, and for that purpose he shall exhibit to them all his books and accounts, and all vouchers relating to the same to be audited and allowed.” (Comp. L., p. 430, § 110; Laws of 1864, p. 73, § 10.) '

Of course the accounts of each fund must be kept separately, and under §§ 32 and 578 of the code, (Comp. L., 129, and 225,) each township, school district, etc., may sue for delinquencies in its own fund and recover from the treasurer or from the county, or from any person that illegally withholds its funds; but this does not necessarily prevent the county-commissioners from suing the treasurer in a case like the one at bar.

For the error of the referee in refusing to allow the witness Hixon to he cross-examined, as to matters upon which he had already been examined in chief, the report' of the referee ought to have been set aside; and therefore the decision of the court below is affirmed, and the cause remanded for such further proceedings as may be proper.

All the Justices concurring.