Cole County v. Dallmeyer

• Decision Date: 22 March 1890
• Citation: 13 S.W. 687,101 Mo. 57
• Parties: COLE COUNTY v. DALLMEYER.
• Court: Missouri Supreme Court

13 S.W. 687

101 Mo. 57

COLE COUNTY v. DALLMEYER.

Supreme Court of Missouri.

March 22, 1890.

COUNTY TREASURERS — SETTLEMENT OF ACCOUNTS — EVIDENCE.

1. The county court, before which Rev. St. Mo. 1879, § 5378, makes it the duty of a county treasurer, or the personal representative of a deceased county treasurer, to settle his accounts, does not, in such examination, act in a judicial capacity, but merely as an auditor of public accounts, or as financial agent of the county.

2. Rev. St. Mo. 1879, § 5379, requires certain officers, not including county treasurers, to settle their accounts with the county court at each term, and pay into the treasury any balance found due; and section 5380 gives the county court authority, if they neglect to render true accounts, to adjust their accounts according to the best information it can obtain, and ascertain the balance due, for which, under section 5383, it may enter judgment. Held, that these sections do not provide for or contemplate a judgment against the personal representative of a deceased officer.

3. The proceeding provided by these sections is special and summary, and does not oust the circuit and probate courts of their general jurisdiction.

4. Rev. St. Mo. 1879, § 192, giving probate courts jurisdiction of suits against executors and administrators on demands against deceased persons, gives them jurisdiction of claims by a county against the personal representative of a deceased county treasurer.

5. For any balance due a county from its treasurer, the county may either sue on his official bond or sue the treasurer in assumpsit; or, if the treasurer is dead, it may enforce its claim in the probate court against his estate.

6. Rev. St. Mo. 1879, § 5378, requiring the outgoing county treasurer, or, if he be dead, his administrator, to deliver to the successor in office all moneys belonging to the county, does not require suits for such moneys against the outgoing treasurer or his administrator to be brought in the name of such successor; but, under sections 5356, 5357, giving counties express authority to sue in their own names for money due them, the suit should be brought in the name of the county.

7. The probate court made an order adjourning until August 26th, across the entry of which was written, "Vacated;" this being a method of setting aside orders once entered on the record. On August 22d an order was entered adjourning the regular term, and providing for an adjourned term on August 26th, on which day another order was entered adjourning, and providing for another adjourned term on September 11th. Held, that the probate court had jurisdiction to allow demands at either of the adjourned terms, under Rev. St. Mo. 1879, § 1044, providing that adjourned sessions may be held in continuation of the regular terms, where so ordered in term-time, and section 198, providing that demands may be allowed by the probate court at an adjourned term.

8. A receipt by a succeeding treasurer, purporting to be in full of the balance due the county from a deceased treasurer on a certain fund, is only prima facie evidence of payment in full; and the county can show the amount due, and the treasurer's personal representative the amount paid, by other evidence.

Appeal from circuit court, Cole county.

For report on former hearing, sub nomine Cole County v. Schmidt, see 10 S. W. Rep. 888.

Silver & Brown, for appellant. Draffen & Williams and Edwards & Davidson, for respondent.

BLACK, J.

Frank Schmidt was elected treasurer of Cole county at the November election in 1882. He qualified and continued to discharge the duties of his office until his death, which occurred in November, 1884. Jacob Tanner became the successor of Schmidt. Kunigunda Schmidt qualified as the executrix of the deceased treasurer. Cole county filed a claim in the probate court against the Schmidt estate for $1,647.74, balance claimed to be due on the county interest fund, which claim was allowed by the probate court; and the executrix appealed. The circuit court, on a trial anew, sustained a demurrer to the evidence, and the county sued out this appeal, pending which the executrix died; and the cause has been revived in the name of Dallmeyer, administrator with the will annexed.

1. For the defendant, it is insisted that the probate court had no jurisdiction to allow the demand; and, if it be so, then it must follow that the circuit court had no jurisdiction of the appeal. The claim is founded on the notion that the statute gives the circuit court exclusive jurisdiction to hear and determine such demands. Section 5378, Rev. St. 1879, makes it the duty of the county treasurer to settle semi-annnally with the county court at specified terms of the court; and, in case of his death, it is made the duty of his executor or administrator to make immediate settlement, and deliver to the successor in office all money belonging to the county, "and at each settlement the county court shall immediately proceed to ascertain by actual examination and count the amount of balance of funds in the hands of such treasurer to be accounted for, and to what particular fund or funds it appertains, and cause to be spread on its records, in connection with the entry of such settlement, the result of such examination and count." The county courts of this state have many duties to perform, some of which are judicial, and others are not of that character. The court, in making the stated settlements with the treasurer and other officers, does not act in a judicial capacity. It acts in the capacity of an auditor of public accounts, or as the financial agent of the county. This matter has been so often considered by this court that it is sufficient to cite the following cases: Marion Co. v. Phillips, 45 Mo. 75; State v. Roberts, 60 Mo. 402; State v. Roberts, 62 Mo. 388; State v. Smith, 65 Mo. 464.

Section 5379, Rev. St. 1879, makes it the duty of collectors, sheriffs, marshals, clerks, constables, and other persons chargeable with moneys belonging to any county, to settle with the county court at each stated term, — there being four of these terms, — and to pay into the treasury any balance found due; and section 5380 declares: "If any person thus chargeable shall neglect or refuse to render true accounts, or settle as aforesaid, the court shall adjust the accounts of such delinquent according to the best information they can obtain, and ascertain the balance due to the county." And section 5383 enacts: "Unless the...