June 2, 1959 —
June 26, 1959.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellants there were briefs by Herbert L. Mount, attorney, and Robert A. Hess of counsel, and oral argument by Mr. Mount and by Mr. John A. Keck, all of Milwaukee.
For the respondent there was a brief by Walter J. Mattison, city attorney, and John F. Cook, assistant city attorney, and oral argument by Mr. Cook.
This is an appeal from an order overruling the demurrer by the defendants, Virgil H. Hurless, former city comptroller, and National Surety Corporation, to the amended complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
Following the service of the complaint, the defendants moved to make it more definite and certain or strike portions thereof in the respects set out in the order to show cause. This motion was granted in part by order dated September 10, 1958. The plaintiff then moved that it, as a compliance with such order, be permitted to amend in the manner requested in the order to show cause dated September 24, 1958. This motion was granted in part, and the complaint amended as set forth in the order dated September 30, 1958. The defendants then demurred to the complaint as so amended. Arguments upon the demurrer were had on November 7, 1958.
The complaint alleges in substance to wit: Between January 1, 1954, and December 31, 1956, Hurless drew funds from the treasury upon certifications in the amount of $12,584. This amount was received by Hurless upon 41 vouchers and certifications consisting of 31 vouchers in the amount of $300; 3 vouchers in the amount of $250; 2 vouchers in the amount of $355; 2 vouchers in the amount of $566; 1 voucher in the amount of $342; 1 voucher in the amount of $200; and 1 voucher in the amount of $150.
That upon information and belief Hurless cashed the checks and received the money, and that the only basis on which such funds could be withdrawn from the city treasury was that the money was to be expended for municipal purposes.
That no proper accounting was ever made to the city by Hurless with regard to the money drawn upon the vouchers.
That in addition to the funds listed, Hurless, upon numerous other certifications, drew funds during the years 1954, 1955, and 1956; that pursuant to a request of the secretary-business manager of the Milwaukee school board inquiring into the matter of billings made against schoolboard bond funds on March 9, 1957, the school board recommended to the common council that an audit be made of certain travel and related expense vouchers of Hurless to determine whether the moneys were actually expended and were a proper charge against the school-board bonds. That prior to November, 1956, the city had no knowledge of the status of accounts with regard to the 41 vouchers listed in paragraph 6 of the complaint.
That on September 24, 1957, the common council authorized by resolution the finance-printing committee to conduct an audit in accordance with provisions of the city charter. The committee subpoenaed Hurless to testify under oath and account for the funds drawn by him, particularly for the years 1954 through 1956, and that he failed and refused to properly account.
On June 6, 1958, the common council by resolution authorized the commencement of a suit by the city attorney to recover from Hurless and his bonding company the amount of $12,584 which had been withdrawn on the 41 vouchers.
Paragraph 11 of the complaint states that Hurless drew divers sums during the years 1954, 1955, and 1956. These are the same years covered by the 41 vouchers.
The complaint further alleges that the vouchers and certifications were made by Hurless, approved by him, and audit stamp in his name was affixed thereto by a member of his staff. It further alleges that when not spending all of the funds drawn for a particular trip, Hurless placed the balance of such funds in his pocket with his own money, that Hurless kept such money with moneys of his own and relied only on tabulations of the most-temporary nature as the only detailed record and accounting for the public money. That these temporary tabulations were not retained by the comptroller or incorporated in any official document which would account for the spending of these funds.
That demand has been made upon Hurless for a proper accounting and that he has failed and neglected and refused to produce the same. That the city of Milwaukee possesses no records which show a proper accounting for the funds drawn upon the 41 vouchers.
Paragraph 13 of the complaint states that Hurless was a custodian of trust funds to spend the same for the purposes for which such money was intrusted to him.
Paragraph 16 states that Hurless failed to faithfully and legally discharge the duties of his office according to law in that he has failed to account for public funds which he has drawn, and in that he has failed to show that said funds were spent for a municipal purpose, and that such failure to faithfully and legally discharge the duties of his office according to law is that such as is contemplated in the covenants of the bonds of the defendant National Surety Corporation.
Paragraph 18 states that Hurless has failed to account for public funds which came into his hand, and requests the payment of $12,584, and that he has failed, neglected, and refused to pay the same.
Paragraph 19 states that the plaintiff has no adequate remedy at law.
The "wherefore" clause requests accounting of all moneys received by Hurless pursuant to the 41 vouchers, and that the plaintiff have judgment against the defendants for any sums found to be due, and for such other relief as may be deemed just and equitable.
In determining whether a complaint is subject to a demurrer, the most-liberal interpretation possible must be given to it. If the complaint states any facts upon which the plaintiff can recover, it must be held to state a cause of action.
Considerable freedom is allowed to parties in stating in their pleadings the facts relied upon to establish their rights.
In Hall v. Bell (1910), 143 Wis. 296, 299, 127 N.W. 967, it is said:
"If the pleading, giving it the benefit of every reasonable inference, expressly or by such inference, or both, states facts showing the plaintiff to be entitled to some relief within the competency of the court to grant, it states a good cause of action for such relief."
The complaint alleges facts showing the fiduciary capacity under which the defendant Hurless received the money; that the transactions involved are so complicated that the remedy for the plaintiff at law would be inadequate; and that a demand was made for an accounting which was refused or not rendered.
We conclude that, under our liberal rules of pleading and giving the complaint the benefit of every reasonable inference, a cause of action is stated. Therefore, it devolves upon the defendants to answer the amended complaint.
By the Court. — Order affirmed.
MARTIN, C. J., took no part.