#### TOWN OF KADOKA, Respondent, v. HODGIN, et al, Appellants.

(238 N. W. 887.)

(File No. 7160.

Opinion filed November 18, 1931.)

*250*Sterling, Clark & Grigsby,*of Redfield, for Appellant.

*Harold P. Gilchrist,*of Kadoka, and *Philip & Waggoner,*of Philip, for Respondent.

WARREN, J.

The town of Kadoka, Jackson counity, sued Francis Hodgin as treasurer of said town and the Federal Surety Company, as surety on his official bond, for failure to account for and pay over certain moneys belonging to it, contending that Hodgin was elected as treasurer on the 19th of May, 1926, for the term of one year and that the Federal Surety Company furnished his bond in the sum of $2,000 to cover the official acts of Hodgin during his term of office. It is further contended by plaintiff that Hodgin deposited the town funds in the D'akota State Bank of Kadoka. The complaint also alleges that Hodgin for several years had been the cashier of this banking institution and that he knew the bank was an unsafe place in which to deposit town moneys. By stipulation between the parties, a jury was waived and the action tried to the court.

The plaintiff offered only two witnesses and some documentary evidence. One of their witnesses, -Damon, was an examiner in charge of the failed Dakota State Bank; the other one, Fryberger, was the treasurer of the town.

The record 'before us fails to show by any competent evidence that any moneys or funds came into Hodgin’s hands as town treasurer. There is no competent evidence produced relating to the account in the bank which the plaintiff contends shows funds belonging to the city, nor that the account pertained to money deposited for and on, behalf of the town. There is no competent evidence to show that Hodgin has not accounted for all funds, if any, that came into his hands as treasurer. The exhibits that the plaintiff attempted to introduce were not properly identified. The most the identification amounted to was that the exhibits were part of the documents which the examiner in -charge found in the bank. Before the plaintiff can be permitted to recover, there must be some legal proof -based upon some competent evidence to- show how much money Hodgin as treasurer failed properly to account for and pay over. Mere surmise, conjecture, and guess upon such *251propositions are not sufficient. As the record! now stands, and is presented to this court, we cannot escape from the conclusion that there is no competent evidence to show that at the time the Dakota State Bank was closed, Francis Hodgin, as treasurer, had any moneys on deposit therein that .belonged to said town or to which the plaintiff was entitled, and there is no evidence showing that Hodgin was the cashier of the Dakota State Bank or an executive officer thereof, or that he had any actual knowledge'of its financial condition, nor is there any evidence that he was using funds belonging to the plaintiff to bolster up the affairs of the bank.

Believing that the record as now presented requires that the findings, conclusions, and judgment made by the trial court must be set aside for the reasons we have heretofore indicated, the order and judgment appealed from' are hereby reversed.

■POLLEY, P. J., and CAMPBELL, ROBERTS, and RUDOLPH, JJ., concur.