State v. Scott

Decision Date23 March 1891
PartiesSTATE ex rel. PEMISCOT COUNTY v. SCOTT et al.
CourtMissouri Supreme Court

BARCLAY, J., dissenting.

Error to circuit court, Pemiscot county; JOHN D. FOSTER, Judge.

C. P. & J. D. Johnson, for plaintiff in error. D. H. McIntyre, for defendants in error.

BLACK, J.

This is a suit brought by the county of Pemiscot on the official bond given by the defendant Scott as collector of that county. The other 12 defendants are his sureties on the bond. The county obtained judgment at the September term, 1884, of the circuit court, which was the return term of the writ. The judgment contains this recital: "Now, at this day, come the parties by attorney, and by agreement and consent judgment is rendered against the defendants in the sum of $1,536.21." Nothing further was done until the May term, 1885, at which time 11 of the defendant sureties filed a petition in the cause, called a "bill in review," praying that the judgment be set aside, and for leave to answer. This petition for review states that, while the judgment contains a recital that it was entered by the consent and agreement of the defendants, "in truth and in fact these sureties made no such agreement, and gave no such consent, as specified in said judgment;" that petitioners are advised the judgment should have been simply an interlocutory one at that, the return term; that the coroner's service of summons is illegal, in that it does not show which defendant was first served with a copy of the writ and petition, and does not show that a copy of the writ was delivered to a member of the family of one of the defendants, whose name is stated; and that they have a meritorious defense in this: that the county court, after the bond had been approved, and without their consent, released one of the sureties. The county filed an answer, and the circuit court, at the November term, 1885, set aside the judgment before entered, and gave defendants leave to answer, and accordingly they filed answer to the original petition. A trial was had in July, 1886, which resulted in a judgment for the defendants, declaring the bond "utterly null, void, and of no force and effect." This judgment, or rather decree, is based upon a finding of the court therein recited that the bond "was, after its approval, mutilated, defaced and tampered with by the fraudulent erasure of the name of William Wilks, who had signed said bond as one of the sureties." The county, it seems, filed motions for new trial and in arrest in due time, which were overruled, but filed no bill of exceptions. The case is now before us on writ of error.

1. The petition for review must have been filed and sustained on the supposition that section 3684, Rev. St. 1879, as amended in 1883, (Laws 1883, p. 125,) applies to cases like the one in hand. That section provides for a review upon a petition...

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28 cases
  • Lilly v. Menke
    • United States
    • United States State Supreme Court of Missouri
    • 22 Diciembre 1894
    ...v. Davis, 50 Mo. 572; ""Peltz v. Eichele, 62 Mo. 177; ""State v. Griffith, 63 Mo. 548; ""McIntire v. McIntire, 80 Mo. 471; ""State v. Scott, 104 Mo. 26; ""Smith v. Burrus, 106 Mo. 96; v. Cape Girardeau, 48 Mo. 80; ""Sweet v. Maupin, 65 Mo. 65; ""Bagby v. Emberson, 79 Mo. 139. ""Alexander Gr......
  • Thomasson v. Mercantile Town Mutual Insurance Company
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Octubre 1905
    ......The. statute in that behalf is as follows:. . .          . "Suits may be instituted in the circuit court of any. county in this State where the cause of action originated. against any company operating under the provisions of such. article or where such company has its principal ... new trial or in arrest. [Lilly v. Menke, 126 Mo. 190, 28 S.W. 643, 994; State ex rel. v. Scott, 104. Mo. 26, 15 S.W. 987, 17 S.W. 11; McIntire v. McIntire, 80 Mo. 470; Weil v. Greene, 69 Mo. 281; Munchow v. Munchow, 96 Mo.App. 553, 70 S.W. ......
  • Lilly v. Menke
    • United States
    • United States State Supreme Court of Missouri
    • 22 Diciembre 1894
    ...supposed to be sanctioned by the principles of the common law. It is not necessary to examine into that, at present. See State v. Scott (1891) 104 Mo. 32, 15 S. W. 987, and 17 S. W. 11. But it may be remarked, in passing, that the rule applied in this case by my learned associates appears t......
  • Cape Girardeau & C. R. Co. v. Wingerter
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Abril 1907
    ...trial or in arrest of judgment were filed. Ancell v. Cape Girardeau, 48 Mo. 80; Bagby v. Emberson, 79 Mo. 139; State ex rel. Pemiscot County v. Scott, 104 Mo. 26, 15 S. W. 987, 17 S. W. 11; Orchard v. Nat. Ex. Bk. (Mo. App.) 98 S. W. 2. Counsel for defendant next suggests that it is apparen......
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