Montgomery County v. Auchley

• Decision Date: 24 February 1891
• Citation: 15 S.W. 626,103 Mo. 492
• Parties: Montgomery County v. Auchley, Executor, et al., Appellants
• Court: Missouri Supreme Court

15 S.W. 626

103 Mo. 492

Montgomery County v. Auchley, Executor, et al., Appellants

Supreme Court of Missouri, Second Division

February 24, 1891

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Emil Rosenberger for appellant Auchley.

(1) The judgment is against the law and evidence. It was essential that the plaintiff aver and prove that Auchley signed the note in pursuance of an order of the county court requiring the principal to give additional security. Stone v White, 8 Gray, 589; Montgomery Co. v. Auchley, 92 Mo. 126. (2) The nunc pro tunc order was not based on competent or sufficient evidence. Bilken v. Rhodes, 76 Mo. 643; Fletcher v. Combs, 58 Mo. 430. That the judgment was made or intended to be made by the court must appear either from the judge's docket or from the clerk's minutes of the proceedings, or from some paper in the case. Bilkens v. Rhodes, 76 Mo. 650; Fletcher v. Combs, 58 Mo. 430; Gibson v Chouteau, 45 Mo. 171; Turner v. Benoist, 50 Mo 145; Bank v. Allen, 68 Mo. 474; Jones v. Hart, 60 Mo. 351; Woodridge v. Quinn, 70 Mo. 370; Fellers v. Baird, 72 Mo. 389; Atkinson v. Railroad, 81 Mo. 50; Gamble v. Dougherty, 71 Mo. 599. (3) The evidence shows that plaintiff by its prosecuting attorney compromised with Gliser, and in full settlement and discharge of his liability accepted his note for $ 100 with two securities. The court should at least have given credit for the Gliser note.

John M. Barker, Sol. Hughlett and John M. Wood for respondent.

(1) The nunc pro tunc entry of the county court cannot be impeached in a collateral proceeding. Auchley was notified when and where the application for this nunc pro tunc order would be made, and he cannot now assail it, except in a direct proceeding, for that purpose. Mann v. Schroer, 50 Mo. 306; Camden v. Plain, 91 Mo. 117; Johnson v. Beasley, 65 Mo. 250; Sims v. Gray, 66 Mo. 616; State v. Evans, 83 Mo. 322; Moore v. Davis, 85 Mo. 468; Jeffries v. Wright, 51 Mo. 220; Colvin v. Six, 79 Mo. 200. (2) "The defendant Auchley by signing and sealing the bond meant something. It was as much as if he had prepared an independent instrument, reciting the former bond and the stipulation therein to give further surety and the order of the court, and in consideration of all that obligated himself to stand bound for the payment of the debt." County of Montgomery v. Auchley, 92 Mo. 129. (3) The instrument sued upon was a sealed one importing a consideration. 92 Mo. 126; R. S., sec. 2389. The county court had no authority to compromise with Gliser (one of the sureties), or in consideration of his executing a note for a part of the amount due to discharge him on the bond, and it necessarily follows that it had no authority to authorize the prosecuting attorney or anyone else to make such an agreement with one of the securities. The compromise spoken of, or rather the attempted discharge of Gliser from the bond in consideration of his having executed a note for $ 100, being unauthorized, did not and does not in any way affect the rights of the plaintiff. The powers of county courts are limited and defined by law. The statutes constitute their warrant of attorney. Whenever they step outside of and beyond this statutory authority their acts are void. Ray Co. v. Bentley, 26 Mo. 272; 49 Mo. 236; Washington Co. v. Boyd, 64 Mo. 179; 87 Mo. 246; Sturgeon v. Hampton, 88 Mo. 203, and cases cited; State ex rel. v. Harris, 96 Mo. 29.

OPINION

Thomas, J.

This action was commenced in 1883, on a school bond for $ 330, against Francis Auchley, Martin Hildebrand and Gustave Bachman. Hildebrand was not served, and the writ was dismissed as to him. Bachman did not answer, and judgment by default was rendered against him; Auchley died in 1886, and his executor was made defendant, and he alone prosecutes this appeal.

It appears from the record that Martin Hildebrand borrowed $ 330 belonging to the school funds of Montgomery county, and on the twenty-fifth day of November, 1868, executed his bond for the same with Gustave Bachman and Christian Gliser as sureties. This bond was in the form required by section 68, page 270, General Statutes, 1865, and was secured by mortgage of Hildebrand's real estate. On the twenty-eighth day of February, 1877, Francis Auchley signed the bond as a surety. The land included in the mortgage was sold, in 1883, for $ 50.

Defendant Auchley set up and relied upon two distinct defenses: First. That, having signed the note after it was delivered to the county, there was no sufficient consideration to bind him, and, second, that in 1883 the county court of Montgomery county authorized J. M. Barker, the prosecuting attorney of the county, to collect this bond and "to effect such compromise as he may consider best in the premises," and that, in pursuance of this authority, Barker took a note for $ 100, signed by Gliser, one of the sureties on the original bond, with James R. Hance and Mitchell Klingelhoefer as sureties, and then gave said Gliser a receipt, as follows:

"Danville, Mo., May 10, 1883.

"Received of Christian Gliser a note for $ 100, signed by him, James R. Hance and Mitchell Klingelhoefer, dated May 9, 1883, and due in six months, eight-per-cent. interest, in full payment of his part of the bond for $ 330 given to Montgomery county, Missouri, for the use of school fund, township 49, range 5, dated November 28, 1868, and the said Christian Gliser is guaranteed against any further payment on said bond to said county or to Francis Auchley, his cosecurity, or to any other person.

"[Signed] Montgomery County, Mo.

"By John M. Barker,

"Prosecuting Attorney."

Defendant claimed that this receipt relieved him wholly from liability on the bond, and, if not wholly, at least to the extent of this note for $ 100, which ought to have been credited on the bond the day of its date. The case was tried by the court and judgment was rendered against Auchley's executor for the whole amount of the bond.

The evidence shows that on the seventh day of February, 1884, the county court of said county made a nunc pro tunc entry, on motion of the prosecuting attorney, as follows: "Now comes plaintiff praying for an order, etc., also files notice to defendants who make default, and, motion being heard, the court finds from the evidence that the facts set out in plaintiff's motion are true; that an order was made on the eleventh of August, 1876, by the county court, which order was substantially in the following form and effect, and which order is now ordered to be entered on the records of the court nunc pro tunc, viz.: In the matter of the loan made November 25, 1868, to Martin Hildebrand of $ 330 belonging to township 49, range 5, of said county. The court now deeming it necessary, for the better preservation of the said fund so loaned to said Hildebrand, he, the said Martin Hildebrand, is hereby ordered and required to give additional security on his bond for said loan and that notice of this order be served on said Hildebrand.

"In the matter of the loan of $ 330 school money to Martin Hildebrand, on the twenty-fifth day of November, 1868, and the taking of additional security on the bond therefor, on the twenty-eighth day of February, 1877: It appearing to the court that J. M. Barker, ex-county clerk, on February 28, 1877, acting for the public interest and at the request of M. Hildebrand and Francis Auchley, on said day, in vacation of the court, at his office, took and accepted said Francis Auchley as an additional maker and security on said bond, and the said Auchley then accepted and signed said bond to the county as maker and security therein; it is, therefore, ordered and adjudged by the court that the said action of said county clerk be approved to all intents and purposes the same as though said active control and execution of said bond were all done by this court."

Both parties introduced evidence, one to show that this entry ought, and the other that it ought not, to have been made. The evidence showed further, that prosecuting attorney Barker took the note of Gliser and gave the receipt as alleged by Auchley. It further appeared that Hildebrand was Auchley's father-in-law. Auchley often paid the interest on this bond after 1877, Hildebrand sending him the money up to 1883. The Gliser note for $ 100 was not paid, there being evidence tending to prove that Gliser was insolvent.

The court gave no instructions. The defendant, however, asked the court in substance to declare the law to be, first, that Auchley was not liable if he did not sign the bond in pursuance of an order of the county court requiring additional security; second, the order nunc pro tunc, February 7, 1884, was void, because there was no sufficient written memoranda of the previous order to authorize it; third, that Auchley was released from liability on the bond by reason of the release of Gliser, and, fourth, that in no event could Auchley be held for more than one-half the bond, on account of the release of Gliser, which the court refused to do, and the executor duly excepted.

I. The first question presented by the record is, was there any consideration to support Auchley's promise to pay the debt? It seems to be conceded by both parties that, if the county court made an order August 11, 1876, requiring Hildebrand to give additional security for the loan, and in pursuance thereof Auchley signed the bond, the consideration was sufficient to make him liable. Indeed, this point was settled by this court in this same case, when here on a former appeal. 92 Mo. 126, 92 Mo. 127, 4 S.W. 425. This being conceded, let us inquire whether the order requiring the additional security was in fact made. The only evidence of this we have is the nunc pro tunc entry of ...