Ferry v. King County

The facts of the case fully appear in the following statement by Mr. Chief Justice FULLER:

This was an action brought by the county of King, in the district court of the third judicial district of the territory of Washington, against, George D. Hill and his sureties upon his official bond as county treasurer of said county, to recover certain moneys received by him during his official term of two years, commencing the first Monday in January, 1881, which it is alleged he had failed to account for or to pay over to his successor in office. The complaint set up Hill's election; the execution and approval of the bond, which was set forth in haec verba; the taking of the oath, and entry upon the office, and continuance therein for the full term; the receipt of moneys as treasurer; and the failure to account for and pay over a large sum which was specified. It was further averred that in the accounts by the treasurer and auditor, and settlement had with the board of county commissioners the treasurer was charged with a certain amount, for which he accounted, when by mistake and error there was overlooked a certain sum, which was named, which should have been charged him, and was not; and that also in the book-accounts kept, and settlements had, the treasurer received certain credits, which were enumerated, some of which credits, which were mistake and error larger than they should have been, and the excess of each of these credits was specifically given. Motions to quash the summons, demurrers to the complaint, and motions to make the complaint more definite, were made and filed by the defendants, and overruled. The defendants then answered, denying the default of the treasurer, and pleading in addition affirmative defenses, alleging various settlements at times prescribed by law between the treasurer and the board of county commissioners, and insisting upon such settlements, and the accounts and credits as settled and allowed, as just and true, and a complete defense to the action. Plaintiff replied to the affirmative defenses, denying a full or any settlement with the board of county commissioners, and again averring mistake and error, through which the treasurer received credits on account of the particular funds mentioned, to which he was not actually entitled. Motions were then made to strike out part of the reply, and to make it more definite and certain, and demurrers were also filed thereto, all of which were overruled. The cause was then referred to a referee to take testimony, and to make and report his findings of fact and conclusions of law, which report having been subsequently made, the defendants moved to set it aside, and for a new trial, upon the following grounds: '(1) Irregularity in the proceedings on the part of the plaintiff, in this: that said plaintiff failed to set forth or specify in the pleadings the items of the account sued on, and failed and refused to furnish defendants the items of said acount after a proper demand therefor before the trial; (2) irregularity in the proceedings of said referee, in admitting in evidence said account offered by said plaintiff notwithstanding the failure of said plaintiff to either set forth in the pleadings the items of the account sued on, or furnish said items to the defendants after a proper demand therefor, before the trial, and against defendants' objections, made at the time of the offer of said evidence; (3) irregularity in the proceedings, and abuse of discretion on the part of the referee, in admitting in evidence, against defendants' objections, original books, papers, and documents which are public records required by law to be and remain in the custody of the auditor of King county; (1) error in the assessment of the amount of the recovery, the amounts as per findings being too large; (5) insufficiency of the evidence to justify the said findings and decision of the said referee; (6) the said findings and decision of the referee are against law; (7) error in law occurring at the trial, and excepted to at the time by the defendants.' This motion was denied, and judgment rendered upon the findings of the referee in favor of the plaintiff and against the defendants. The territory having been admitted into the Union, the case was taken on error to the supreme court of the state. Prior to this, Hyde, one of the defendants, died, and his executors, failing to join in the writ of error, were made defendants in error. After the cause was docketed in the supreme court, Hill died, and his executors were substituted. Eleven errors were assigned by plaintiffs in error as grounds for the reversal of the judgment. These questioned the rulings of the district court upon the various motions and demurrers, and the action of that court in denying the motion of defendants to set aside the report of the referee, and to grant a new trial. On April 6, 1891, the judgment was affirmed. The opinion of the supreme court, by ANDERS, C. J., is returned in the record, and may be found, in the absence of the official series, reported in 26 Pac. Rep. 537. To review this judgment a writ of error was allowed from this court; and, the record having been filed, the cause came on on a motion to dismiss or affirm.

John Paul Jones and Reese H. Voorhees, for the motion.

J. C. Haines, opposed.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.