Foote v. County of Adams

80 N.W.2d 179, 163 Neb. 406, 1956 Neb. LEXIS 151
CourtNebraska Supreme Court
DecidedDecember 21, 1956
Docket34025
StatusPublished
Cited by9 cases

This text of 80 N.W.2d 179 (Foote v. County of Adams) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foote v. County of Adams, 80 N.W.2d 179, 163 Neb. 406, 1956 Neb. LEXIS 151 (Neb. 1956).

Opinion

Simmons, C. J.

In this action plaintiff is a taxpayer suing for himself and all other taxpayers of Adams County. The *407 defendants are the County of Adams and the seven members of the county board of supervisors. The defendants will hereinafter be referred to as the county or the county board, as the case may be.

Plaintiff seeks to enjoin the county from purchasing and paying for a blanket bond from Western Surety Company covering any person elected to county office who is required by statute to furnish an official bond. The Western Surety Company will hereinafter be referred to as the company.

Other issues presented need not be determined in this appeal.

The defendants by answer alleged that the blanket bond involved complied with the statutes and furnished complete protection to the county. They pleaded other matters not involved in the question determined here.

The trial court held that the blanket bond when approved by the appropriate officers constituted a good and sufficient bond for each of the officers participating therein, and rendered judgment for the defendants.

Plaintiff appeals.

We reverse the judgment of the trial court and direct a judgment in accord with this opinion.

On July 7, 1954, the county board by motion provided that “we purchase the $5000.00 Blanket Position Bond from the Western Surety Co., * * * on all officials and employees with an excess” on certain official positions “at a four year price of $2181.87.”

The bond bearing the original date of July 27, 1954, is in evidence. It carries a rider that its date shall be changed to read December 24, 1954. This rider, apparently filed with the bond, was countersigned December 28, 1954, at Sioux Falls, South Dakota.

The bond on its face provides:

“KNOW ALL MEN BY THESE PRESENTS:

“That the WESTERN SURETY COMPANY, a corporation duly licensed to do business in the State of Nebraska as Surety, does hereby indemnify County of *408 Adams, State of Nebraska as Obligee, for the use and benefit of County of Adams, State of Nebraska as Insured, against any loss, the amount of indemnity as to each officer or Employee not to exceed Five Thousand and no/100 ($5,000.00) DOLLARS, (and in such additional amount as to any Officer or Employee or Position as endorsed on the back of this bond as Additional Indemnity Endorsement, or as hereafter added or changed by Rider signed by the Surety and accepted by the Obligee or Insured), caused by any Officer or Employee of the Insured as herein stated:

“Section 1. If the Officer or Employee is required by law to furnish a bond in the position with the Insured, any loss caused through the failure of such Officer or Employee to faithfully perform his duties or to account properly for all moneys and property received by virtue of his position.

“Any and all provisions required by statute, law, rule or regulation as provisions of the bond of each such Officer or each such Employee, are hereby incorporated herein and made a part hereof.

“Section 2. If the Officer or Employee is not required by law to furnish a bond in the position with the Insured, any loss caused through any act of fraud, larceny, forgery, theft, embezzlement, wrongful abstraction, willful misapplication or willful misappropriation, or other fraudulent or dishonest acts committed by such Officer or Employee,

“SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS AND LIMITATIONS:

“Section 3. The term of this bond begins with the 6th day of January, 1955.

“Section 4. Regardless of the number of years this bond shall continue in force and the number of premiums which shall be payable or paid, the liability of the Surety under this bond on account of any one Officer or Employee as specified in Section Two hereof shall not be cumulative in amount from year to year or from *409 period to period. As to any one Officer or Employee specified in Section One hereof, the coverage shall be cumulative as to each elected or appointed term.

“Section 5. This bond shall be deemed canceled as to any Officer or Employee: (a) as to Officers or Employees specified in Section One, in the manner provided by statute; (b) as to Officers or Employees specified in Section Two, when so stated in a written notice served by the Obligee or the Insured upon the Surety; or at twelve o’clock night upon the effective date specified in a written notice served by the Surety upon the Obligee and the Insured by registered mail. Such date shall not be less than thirty days after the date borne by the sender’s registry receipt.

“Section 6. If the bond is canceled as an entirety, the Surety shall, on request, refund to the Obligee or the Insured the unearned premium computed pro rata. “Section 7. Any oath of office attached to this bond signed by an official to be covered under this bond is a part of this bond in the same manner as if it were contained herein.

“RIDERS

“Section 8. The liability of the Surety hereunder is subject to the following terms and conditions or to the terms and conditions of the following Riders attached hereto:”

The positions as to additional amounts endorsed on the back of the bond are the county treasurer, sheriff, deputy sheriff, deputy treasurer, and county judge.

Attached to the bond are four pages whereon the following in typewriting appears: “I accept the foregoing bond and submit the same to the Board of Supervisors of Adams County, Nebraska, as my official bond for the office of-of Adams County, Nebraska, for my term beginning January 6, 1955.” This is repeated 20 times. Nineteen of the statements are signed. Fourteen statements have the name of the office inserted in writing. In five statements the name of the *410 office remains in blank. These statements do not show when they were signed, nor does it appear when they were attached to the bond. Some light on that problem is shown by the fact that the first five parties whose names appear on these statements verified their oath of office on January 6, 1955; the next eleven verified their oath of office on December 24, 1954; the next two verified their oath of office on December 28, 1954; and the last one verified his oath of office on January 6, 1955.

On December 24, 1954, the county board of supervisors adopted a motion reciting that the county officers having presented their blanket bond, and it having been found sufficient, it “is hereby approved * * * and ordered filed in the office of the County Clerk and County Judge * *

Also attached to the bond are 21 separate oaths of office. Of these oaths of office 11 are shown to have been verified on December 24, 1954. The oath of the county clerk and the deputy county clerk are shown to have been verified on December 28, 1954. Six of the oaths are shown as verified on January 6, 1955. The oath of the deputy county assessor is shown to have been verified on January 10, 1955, and that of the deputy county attorney on February 8, 1955. The last two officials do not appear to have signed the “accept” and “submit” form.

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Cite This Page — Counsel Stack

Bluebook (online)
80 N.W.2d 179, 163 Neb. 406, 1956 Neb. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foote-v-county-of-adams-neb-1956.