
    INDEPENDENT SCHOOL DISTRICT NO. 5 OF DAVIS, Respondent, v. FRITCHER, Defendant (Western Surety Company, Appellant).
    (208 N. W. 580.)
    (File No. 5702.
    Opinion filed April 22, 1926.)
    Appeal from Circuit Court, Turner County; Hon. L. L. FlEEGER, Judge.
    
      Kirby, Khrby & Kirby, of Sioux Falls, for Appellant.
    
      Johnson & Simons, of Sioux Falls, for Respondent.
   GATES, P. J.

This cause is before us on demurrer to the complaint interposed' by the Western Surety Company, the bondsman of defendant Fritcher, school treasurer. The demurrer was overruled. Defendant surety company appeals. The facts pleaded show that the school treasurer had on deposit in the Bank of Davis, a bank which had complied with the Depositors’ Guaranty Fund Law, .funds of the district amounting of $2,687.41 at the time the bank suspended, and it is to recover that sum that this action was brought. No point is raised upon the. appeal in this case that is not covered by the opinion in Edgerton Ind. Con. School Dist. v. Volz, 50 S. D. —, 208 N. W. 576.

It is stated in respondent’s brief that the city treasurer was also cashier of the failed bank. Nothing of that kind is alleged in the complaint. Suffice it to say that, if the treasurer acted negligently or in bad faith in depositing or was negligent in continuing the deposits, the.decision on this appeal is not res judicata of that question.

Pursuant to the opinion in the Volz Case, the order overruling the demurrer to the complaint in this case must he and it is reversed.

MISER, Circuit Judge, sitting in lieu of SPIERWOOD, J.  