Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1902-06-05
Supreme Court Revsres Decision In the
BARLEY Bond Case
CAUSE SENT BACK FOR ANOTHER TRIAL
Opinion Of the Court is Written by Commits
sionsr Roscoe Pound
ONLY ONE POINT OF FACT TO SETTLE
That is Whether Dsfaloation Occurred Dur
ing First or Second Term.
ALTERATION OF BOND NOT MATERIAL
II DefaIcRtiOn Was During second
Term All Bondsmen Against whom
Action is Pending May
BE Held.
CFrom a stan Correspondent

CFrom a stan Correspondent
LINCOLN. June Especial The su-
preme court delivered an opinion late this
afternoon in which It is held that II the
shortage OF former Treasurer BARLEY oe-
Cured during bis second term Of office all
OF the six bondsmeu. against whom pro-
ceedings by the state are now pending. are
liable for the full amount claimed by the
state. These bondsmen are: W. A. Pax
ton, Thomas Swobe, Cadet Taylor. G. c.
McNish. E. E. Brown and John II. Amss.
The case is remRnded TO the district court
Of Douglas county with instructions for an
other trial at which the only question or
issue to be considered is whether or not the
defalcation occurred during the second
term, or in whole or in part during the
first term. 1t is ordered by the court that
II the defalcation occurred during the last
term the defendants are liable. The amount
claimed by the state Is approximately $780,
900.
The opinion in this case is by Commits
sioner Roscoe Pound, the junior member
of the court commission. II IL an ex-
haustive treatise on all questions brought
before the tribunal in this action and is
one OF the largest handed down IN recent
years. Commissioner J. b. Barnes concurs
in the finding, but Commissioner Oldham
counsel in the case in the capacity Of
deputy attorney general.
satisfactory TO state.
THE decision is decidedly satisfactory
TO the state" said Attorney General Prout.
at means that the state will recover q
Judgment against all of the bondsmen who
were defendants in this action. There IL
but one issue left for consideration, and
A.. ,,rAa ~ he ch "A VA
curred during the frst or second term OF
the treasurer.
The court holds that the records Of the
settlement at the end Of Bartley's FIRST
term are prima facle evidence that there
vas no shortage at the end OF the nrst
term. This being established, the burden
is on the bondsmen to show that the short
age was in the first term. II the shortage
was in the first term none Of these six
bondsmen would be liable under the bona
In question. II the shortage was In the
hold one we hold all.
THE only way now by which the bonds.
men can be released is for BARLEY to 60
on the stand and testify that the shortage
occurred during the first term. but he will
hardly do that, as his own sworn report,
made at the end OF his FIRST term, showed
that his accounts were square At that
time.
THE case will be tried again in the dis
trict court OF Douglas county and before
a Jury There is simply the question OF
fact TO be determined, and, as ] said be-
| fore, the burden is on the bondsmen."
The case has been three times before
| the supreme court. In the FIRST trial in
the district court decision was given In
| favor OF the bondsmen. That judgment
nv
and the case remanded. At the second trial
in the district court the finding was in favor
| of the state but this judgment also was
! reversed and the case again remanded.
At the third and last trial OF the case
! in the district court judgment was given
! releasing W. A Paxton. Cadet Taylor ana
! Thomas swobe, and holding e. z. Brown,
! c. c. McNish and John H. Ames liable.
The state appealed as TO Paxton. swooe and
| Taylor, while Brown, McNish and Ames ap-
pealed as to the state. In the supreme
court the two branches OF the case were
| ioined and argued at one time. There
were several other bondsmen originally. but
all, excepting the six now appearing a.
defendants, were released upon various
| grounds.
syllabus of the Case
Following is the syllabus:
The rule that decision of this court Is
! points expressly considered IN the opinion.
| but as TO all matters necessarily involved
in the judgment rendered, has not the same
application where the evidence At success
sive trials OF the same cause Is 80 ma
terially different as to AFFECT the con-
Where the evidence at a new trial is OF
may be presumed 70 be materially oinerSnt
from that at a trial already reviewed by
this court in a subsequsss -eview Il viii
investigate the record uninhuenced by the
Of law were there adjudicated, which apply
equally 20 the evidence at each trial.
substantial % conformity with the provisions
and requirements Of a statute needs no
An Undertaking not within the puryiev OF
the statute may nevertheless De upneld -
jectionable and supported by considera-
Under section Is, chapter x Compiled
Statutes, an official bond .ast be approved
as well as executed and nled within the
time fixed by law. Such approval should
s9me sppTovsi Gfio Of % the BOND i renders the once
vacant, II forfeiture is insis-ed upon al
While approval OF the of1cIai bond OF .
state ofhcer Is not necessary 10 It's validity
Is for the benefit of the public, may be
waived. yet this waiver Is for the state tQ
make and the unauthorized ming OF q bond
state from claiming a torfesture under
said section ID, chapter 4, Compiled stat
The governor not the secretary OF state.
Is 20 approve the bond OF a state treasurer.
hence 30 far as the state IL concerned the
nling Of a treasurer's bond by the secre-
tary OF state. before u has been approved
the necessity OF approval
Unless and until the state declares and
enforces a forfeiture, such a bond becomes
ties from the time OF delivery 20 and fling
| by the secretary Of state, whether II "a APP
proved or not.
The approval OF such a bond after instead
OF before filing thereof 10 an '1rregularity'
within the puryieW Of section u, chapter
X, Compiled Statutes, and has no effect
upon its validity.
II such a bond is approved after fling
quaere. whether the approval may not De
said 20 relate back 10 the time OF ming in
the sense that II would waive the neglect
10 procure approval In the time nKed by
law.
IL seems a proper construction Of section
| lh, chapter r. Compiled Statates that the
| forfeiture therein provided Is nos incurred
by failure 10 procure approval Of an cfn-
ii Il = - u :. -