The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-19
Up TO The JURY.
First National Bank Deposit
Case Completed.
Day Devoted to, Courts In.
situations and Arguments.
ONLY ONE QUESTION.
Was State Money q Deposit or
Collection.
On This Point the Liability
Must Be Decided.

The case of the State VS. Tho F,rst
National bank, after occupying the dis
trict court since last Wednesday. went
to the Jury at o'clock this afternoon.
The evidence was all In at 2:30 Nom
day afternoon, and court adjourned
until this morning in order to prepare
It's instructions to the jury. These were
read at the opening of court this morn
Ing. Court then allowed two hours
time on each side for argument.
In his instructions to the Jury
Judge Dana eliminated all points of
law and claims on either side from
their consideration except the PROPOSE
ton OF whether or not the account
Kept by ex-State Treasurer Kellv in
the First National bank was deposit
or collection account. If the former
then they must decide for the defense.
II the latter, then they must bring in
a verdict for the state and against the
q. S. Fidelity and Guarantee company.
the banks sureties, and a party to this
suit. The judges instructions in the
main favored the contentious of the
state. He held that the bond comnany
was liable for the $235. 900 deposited in
the bank before the bond went into
effect under the law of first deposits
in, first money paid out. The court
held that the burden of the proof lay
with the defense and that the jury
must look to the defense for the pre-
ponderance of the testimony, or find
for the state. The court held that the
state was not bound by any private
agreement that might have existed be-
tween Kelly and the bank, and that
even If such an agreement did exist
it would not affect the liability of the
banks bond. The court held that the
bond was in full force and effect dur
ing all the term of Mr.. Kelly's office
up to July g. 1905, as regards its nabili-
ty for money deposited therein by
Mr.. Kelly as state treasurer. In the
evidence introduced by the defense
from the suit of the State. VS..
T. T. Kelly and his bondsmen the
court instructed the jury to give that
evidence what weight 1T deemed it en-
titled to. That it was not to be con-
sidered conclusive or binding upon the
state. If the jury finds for the plain
tiff it should be in the sum of 1913, 715
with interest at per cent from Aug
were concise and clear in spite of the
many Intricate points of law they
disposed of, and they were very COM
prehensive, covering the case in every
detail and from both points Of view.
making careful application Of the law
as Interpreted by the. court.
Arguments of Attorneys.
Attorney Hunt opened for the state
and presented the claims and conten-
tons of the PLAINTIFF in a careful and
complete manner. He wanted the jury
to consider the state as the, plaintiff
and not Mr., Kelly. and he wanted
them to consider it from the light of
taxpayers seeking to recover state
funds bonded by foreign corporation,
which had been paid a premium of $625
per annum for that bond. Mr.. Kelly's
bank book showed total deposits with
the First National during his term of
office up to the time of the banks fail
ure Of over two million dollars. That
the defense did not pretend to dispute
the fact that the bank had $4,000 of
| figures shown by the bank book at the
time Of its failure. That whatever the
character of the account there was no
doubt of the banks liability to the
state for this sum, less the amount
| paid back to Receiver Bradley. Then
the only question is as to the liability
of the banks surety. Under the in
structions of the court Mr.. Hunt held
| that the liability OF the bond company
| had been established by the evidence
| in this case under the terms of its
| bond. The rule of first in first out
wiped out the contentious of the de-
Tense as to everything except the char
acter of the account, whether it was a
deposit or a collection account. Mr..
| Hunt admitted that 1928 Of these de-
posts could hardly be classed as col
| lection accounts, and also admitted
that there was doubt about the char
acter Of a $4,000 deposit, but held that
these deposits were accounted for by
| the bank to the state under the rule OF
| first in, first out. In other words. the
bank had paid out these deposits with
| the first checks honored after they
| were placed in the bank. He claimed
that even IL Kelly had secret or GRIM
| inaI arrangement with the bank to the
| advantage of both parties, this fact
would not keep the account of the state
| treasurer with the bank from being q
| collection account. Regarding the pc
tition Of the state in the suit against
Kelly and his bondsmen, which had
been introduced as evidence by the de-
| Tense, he said, will you take Mr.. Cole
mans statement of law in this matter
| or that of this court in its instruc
| tions?" And he held that even If Mr.
| Coleman's allegations were true, and
| Kelly had made illegal deposits in the
bank still the banks bond would hold
| 1t was to protect the state from such
actions that the bond had been reQuir-
ed and given. MT. Hunt computed
under the rule of the court, the tota
| amount demanded by the state from
| the u, s. Fidelity and Guarantee com
pany in the sum of $139,01 Mr.
Hunt closed, after having presented the
! states case in a most thorough and
capable manner to the jury.
| Scandrett for the Defense.
| Mr.. Scrandett spoke first for the de-
Tense and in the face Of unfavorablt
instructions made a most brilliant ani
| nowerf,1l appeaI to the Jury. His mas