The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910. Page: 16
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174 FEDERAL REPORTER.
-out af the said moneys so deposited with the said Finks under the said rules,
law, and judgments, .But that the said moneys were by him at and before the
time of his retirement from office, and at and after the making of the bond
herein sued on, misappropriated and converted to his own use, in violation of
his duty as clerk of said court, which duty required him to account for said
money and any and all parts thereof, and to pay over the same and any and
all parts thereof to the aforesaid parties to whom they were due, or to his
successor in office, or to the plaintiffs, and the said John H. Finks, at the time
of his retirement from office, and at all other times before, and his executrix,
the said Mrs. Fannie Finks, have entirely failed and refused so to do, and
the said Mrs. Fannie Finks, executrix as aforesaid, Alfred Abeel, surety as
aforesaid, and the Fidelity & Deposit Company of Maryland, surety as afore-
said, each of them have failed and refused and neglected to pay over to the
successor of the said Finks in office, or account for, the said sum of money, to
wit, $26,675.04, or any part thereof.
"(9) Plaintiffs show that the condition of the said bond has been breached,
as hereinbefore shown, to wit, by the failure and refusal of the said Finks,
as shown in paragraph 8, to properly account for all moneys coming into his
hands, as required by law, to wit, the moneys and funds hereinbefore men-
tioned.
"(10) Plaintiffs show that filed herewith and annexed hereto as a part
hereof is a book labeled upon the outside thereof, 'Trial Balance,' which con-
tains on the first forty-two pages thereof an itemized statement of the moneys
and funds mentioned in paragraph 8 of this complaint, which the said John
HB Finks, clerk as aforesaid, failed and refused to account for, as required by
law, which came into his hands as such clerk as aforesaid, and the plaintiffs
show that it is inexpedient and impracticable to set out in this petition, other-
wise than shown by said exhibit, the precise amount in each case which goes
to make up the aggregate amount herein sued for, to wit, the said $26,675.04,
because to effect a more 'detailed statement herein would render this pleading
voluminous and serve no good purpose, the plaintiffs showing that the afore-
Said aggregate comprises amounts the kinds of which are detailed in para-
graph eight of this petition, growing out of hundreds of cases, but the dates
and numbers of the causes, and whether law or equity, and the amount of de-
posits, are set out in said 'Trial Balance.'
"(11) Plaintiffs show that by reason of the execution and delivery of the
said bond and writing obligatory, the defendants and each of them became
liable jointly and severally to pay to these plaintiffs the amount of money in
damages heretofore set forth, to wit, -the sum of $26,675.04.
"(12) Wherefore, plaintiffs pray that citation having issued in terms of law
against each of the defendants herein, they have upon final hearing hereof,
judgment against said Mrs. Fannie Finks, executrix and legatee, for such
amount as under the laws of the state of Texas relating to descent and dis-
tribution of estates they may be entitled to, and that they have judgment for
the full amount of said bond, to wit, fifteen thousand dollars, against said
Alfred Abeel, surety as aforesaid, and against said Fidelity & Deposit Com-
pany of Maryland, surety as aforesaid, together with the interest thereon from
October 16, 1907, at the rate prescribed by law, and all costs of suit.
"William H. Atwell,
"United States District Attorney for the Northern District of Texas, for
Plaintiffs."
The defendants excepted to the petition as follows:
"Said defendants specially except to plaintiff's said first amended original
petition, in that same wholly fails to show that the plaintiff is in any wise in-
terested in the alleged subject-matter of this suit, nor does it appear from said
petition that this suit is instituted by the plaintiff herein upon the relation of
any person whomsoever shown in any wise to be aggrieved by any of the acts
attempted to be complained of by the plaintiff herein, nor are any such acts,
facts or circumstances as entitle the plaintiff to maintain this suit in any wise
averred in the said petition herein; and of this the said defendants pray judg-
ment, and, as, etc."
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The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910., legislative document, 1910; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38220/m1/28/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.