15 S.W. 626 (Mo. 1891), Montgomery County v. Auchley

Citation:15 S.W. 626, 103 Mo. 492
Opinion Judge:Thomas, J.
Party Name:Montgomery County v. Auchley, Executor, et al., Appellants
Attorney:Emil Rosenberger for appellant Auchley. John M. Barker, Sol. Hughlett and John M. Wood for respondent.
Case Date:February 24, 1891
Court:Supreme Court of Missouri
 
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Page 626

15 S.W. 626 (Mo. 1891)

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

[103 Mo. 495] 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 [103 Mo. 496] 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.

[103 Mo. 497] The evidence shows that on the seventh day of February, 1884, the...

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