The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-06-14
DECISION OF The
SUPREME COURT

In the supreme court, state Of North
Dakota. April term, 1918.
The city of Dickinson, a municipal
corporation, plaintiff and respondent,
vs.. J. s. White, defendant, and the
Northern Trust Co., a corporation, de-
PENDANT and appellant.
l. In an action by a municipality
upon the official bond of it's treasurer
to recover for alleged defalcations a
jury was waived and the trial court
found that during the ~treasurer's Sec
ond term he was short in the sum of
$b45.ll, and that during his third term
the aggregate shortages amounted to
more than the penalty in the bono and
he allowed a recovery for such latter
shortages in the sum Of $4,000, the
penalty of the bond with interest.
Vldenc examined and held amply
sufficient to sustain such findings.
2. Plaintiff, instead Of introducing
the books Of the city in evidence for
the purpose of establishing the short.
ages alleged, proved the same by in
Producing in evidence certain receipts
given by it's treasurer to the county
treasurer for sums paid by the latter
to the former as the proceeds Of taxes
collected and belonging to the city,
and it followed this proof by official
reports made by it's treasurer to the
mayor and city council wherein lesser
amounts were reported. Sufficient
foundation was laid for the introduce
ton of these receipts and reports.
Held, that such testimony made a
prima facie case for the city as against
both the treasurer and his surety. The
prima facie case thus established is
fully corroborated by the testimony of
its ex-treasurer and other witnesses.
Held. hat such proof was competent
and amply sufficient to establish the
alleged shortages.
3. The question of the sufficiency of
the complaint to state a cause of ac-
ton is not challenged by certain as
s1gnments of error merely attacking
certain findings as not supported by
the evidence.
4. A shortage shown to exist at a
certain time will, in the absence of
proof to the contrary, be presumed to
have arisen on account of defalcations
occurring during that term of office
and not to include shortages occur-
ring In previous terms.
5. The evidence discloses that de-
PENDENT White, the ex-treasurer OF the
plaintiff and the principal in the bond
sued upon, was also county auditor Of
s. county, and to cover up an admit
ted shortage in his account as city
treasurer existing on July IA, 1909,
he issued a fraudulent county war
rant, payable to another and endorsed
the payeets name upon the back and
on such date deposited the same in
the First National bank of Dickinson,
such bank giving him credit as city
treasurer ON its books for said amount.
The trial court found, and such find
ing is supported by ample evidence,
that the bank received such warrant
merely for collection and that there
n ~ orsE % ~ III IfHnnyynrirr thu F-a ~,
character Of the warrant they charged
such credit off it's books by debiting
White as city treasurer with the
amount of such warrant.
Held. hat the above transaction did
not operate to liquidate such shortage
so as to ~exonerate Whites surety on
his official bond.
6. The trial court allowed plain
tiff interest at the rate of 7 per cent
per mi on the amount of such
shortage shown to exist from the ex-
piration of Whites term in which such
shortage arose.
Held, that such allowances were
sufficiently favorable to appellant.
The fact that the recovery, including
interest, exceeded the penalty OF the
band does not render the allowance
of interest unwarranted.
8(Syllabus by the courtl.
Appeal from district court, Stark
county; Crawford. J.
From a Judgment in plaintiffs fay-
or. defendant. the Northern Trust Co.,
1firnaed. opinion 81 the court, by
Fisk, j..
Pierce. Tenneson & cupler, Fargo,
IN. d, for appellant.
Fl. Al. Burgeson and T.. f. Murtha,
Dickinson, n. d., for respondent.
Seventy per cent Of the films used In
European theatres are from American
houses, We always commended thai