Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-06-17
IN THE SUPREME COURT, STATE
OF NORTH DAKOTA, APRIL

TERM, 1918.
The City of Dickinson, a Mu-
nicipal Corporation.
Plaintiff and Respondent,
vs..
J. S. White, and The Northern
Trust Company, a Corpora
ton,
Defendant and Appellant.
l.. In an action by a municipality
! upon the official bond of its treaSur'
err to ecOve for alleged defalcations
a jury was waived and the trial court
found that during the ~treasurerS sec
ond term he was short in the sum OF
$645. II, and that during his third
term the aggregate shortages amount
ed to more than the penalty in the
bond and he allowed a recovery Tor
such shortages in the sum of $4,000,
the penalty of the bond with inter
| amply sufficient to sustain such find
ings. 80 :
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 i'll
PRODUCING in evidence certain receipts
given by its 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 its treasurer to the
| mayor and city council wherein les
| ser amounts were reported. Sufficient
foundation was laid for the introduc-
! ton of these receipts and reports.
held, the treasurer and his surety.
The prima facie case thus established
is fully corroborated by the testimony
of it's eX-treasurer and other wit
nesses. Held, that such proof was
competent and amply sufficient to es-
tablish the alleged shortages.
3. The question Of the sutticiency
of the complaint to state a cause Of
action is not challenged by certain
assignments of error merely attack
ing certain findings as not supported
by the evidence.
1. 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 defalca-
tons occurring during that term OF
office and not to include shortages Oc-
Touring in previous terms.
5. The evidence discloses that de-
PENDANT White. the ex-treasurer Of
the plaintiff and the principal in the
pond sued upon, was also county au-
ditor Of Stark county, and to cover
up an admitted shortage in his &C.
count as city treasurer existing on
July II, 1909, he issued a fraudulent
county warrant payable to another
and endorsed the payee's 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 Is supported by
ample evidence. that the bank receiv.
ed such warrant merely for collection
and that thereafter on discovering
the fraudulent character of the war
rant they charged such credit off its
books by debiting White as city treas.
urer with the amount of such war
rant.
Held. that the above transaction
did not operate to liQuidate such
shortage so as to eXonerate Whites
surety on his official bond.
g.. The trial court allowed plaintiff
interest at the rate Of I per cent per
annum on the amount of such short
age shown to exist from the e pira.
ton 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
bond does not render the allowance
Of interest unwarranted.
tSyllabus by the Court.)
Appeal from diutrict court, Starl,
County, Crawford, J..
From a Judgment in plaintiffs IA.
vor. defendant. The Northern Trust
company, appeals.
Affirmed.
Opinion Of the Court by Fisk, ],
Pierce, Tenneson L Cupler, Fargo,
N. D., Tor Appellant.
III. A. Burges0n and r. r. Murtha,
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