State v. Blakemore

Decision Date05 July 1918
Citation205 S.W. 626,275 Mo. 695
PartiesSTATE ex rel. DUNKLIN COUNTY v. BLAKEMORE et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Dunklin County; Frank Kelly, Judge.

Suit by the State, on the relation of Dunklin County, against O. C. Blakemore and others. From judgment for plaintiff, defendants appeal. Affirmed.

J. L. Fort, of Dexter, and Orville Zimmerman, Ely, Pankey & Ely, and Jones & Jones, all of Kennett, for appellants. George Smith, Pros. Atty., Jas. A. Bradley, Asst. Pros. Atty., and J. P. Tribble, all of Kennett, C. M. Edwards, of Malden, and Lee B. Ewing, of Nevada, Mo., for respondent.

BLAIR, P. J.

This is an appeal from a judgment in a suit against the treasurer of Dunklin county and the sureties on his bond. The treasurer's books show a shortage of more than $14,000. Over $6,000 of this occurred during his first term. He was re-elected in 1906 and went out of office January 29, 1309. The verdict was for the shortage during his second term and interest from the date he went out of office. Three defendants were sued as the heirs of a deceased surety. One of these was not served. The other two proved their ancestor died before suit was brought, and that his estate had been finally settled in the probate court before the trial of the case. No claim against the estate was made by the state or county. These defendants, Jones by name, asked the court to direct a verdict in their favor. This was refused. After verdict against all defendants, they moved for a new trial. The court set aside the verdict as to defendants Jones, and then rendered judgment in their favor and against the other defendants. Other facts are stated in connection with the discussion of questions to which they are relevant.

I. It is argued the judgment must be reversed because the court sustained the motion of Langdon and Byron Jones for a new trial. Counsel are correct in the view that there can be but one final judgment, and it must dispose of all parties. Section 2097, R. S. 1909; Connelly v. Railroad, 169 Mo. App. loc. cit. 281, 153 S. W. 79. The final judgment in this case does not offend this rule. Every party has judgment either for or against him. It is not contended the judgment in favor of Langdon and Byron Jones proceeded upon any erroneous view of their rights on the merits of their defense. The defense which was sustained applied to no other defendant. It was made out by record proof or its equivalent. It is settled that if judgment had gone against these and they had appealed, this court, in case their nonliability appeared as a matter of law, must have reversed the judgment as to them, regardless of the fate of the appeal of the rest. Carpenter v. St. Joseph, 263 Mo. loc. cit. 712, 174 S. W. 53. In many cases this court affirms as to some appellants and reverses as to others. The common-law rule that judgments are entireties is effective only in exceptional cases. State ex rel. v. Tate, 109 Mo. loc. cit. 270 et seq., 18 S. W. 1088, 32 Am. St. Rep. 664; Patterson v. Yancey, 97 Mo. App. loc. cit. 698, 71 S. W. 845. In this case the liability was joint and several. Section 2769, R S. 1909. Respondent might have sued all or any of those it did sue. Section 2772, R. S. 1909; State ex rel. v. Hoshaw, 86 Mo. 193. Having sued all, judgment against those shown to be liable was proper. Bagnell v. Railway, 242 Mo. loc. cit. 20, 145 S. W. 469; Crews v. Lackland, 67 Mo. loc. cit. 621. Cases are cited in which all defendants were liable or none was so. These decisions are inapplicable. The case of Hughey v. Eyssell, 167 Mo. App. 564, 152 S. W. 434; is peculiar. The action was against two defendants. The trial court directed a verdict in favor of one of these. The jury ignored the direction and found generally for plaintiff. The trial court rendered judgment against one only and in favor of the one for whom had attempted to direct a verdict. It was held defendants were jointly liable and subject to contribution, and the appealing defendant had "a right to have the question determined whether" the other was "to bear any share of the burden." One judge dissented. In the case at bar this question was not presented to the trial court by any of the motions, it is unnecessary to discuss the soundness of the rule applied in the Eyssell Case.

In the circumstances it cannot be held there is in this case any reversible error presented by this contention of appellants

II. It is insisted the bond does not cover drainage district funds. The condition of the bond is that if Blakemore "shall faithfully discharge the duties of said office of treasurer of said county according to the laws of the state of Missouri in receiving, handling, and disbursements of all funds, except school funds of said county, school township And school district funds; then this obligation to be void, otherwise," etc. Section 3752, R. S. 1909, requires the county treasurer to give bond "conditioned for the faithful performance of the duties of his office." Section 5605, R. S. 1909, requires him to "enter into a separate bond, for each drainage district organized in the county * * * conditioned for the faithful disbursement, according to law, of all such moneys as shall from time to time come" into his hands. The bond in suit is not conditioned exactly as prescribed by either of these statutes. Nevertheless, its terms plainly include all county funds except school funds. The obligation to give bend for all these moneys is clear. If not good as a statutory bond, it is good as a common-law bond. It contravenes no public policy, violates no statute, was voluntarily given, and secures, by its terms, moral and legal obligations of the treasurer. The statute provides no form and does not purport to nullify bonds conditioned otherwise than as prescribed. It is good to the full extent of its conditions. State ex rel. v. O'Gorman, 75 Mo. loc. cit. 378, 379; State ex rel. v. Sappingtion, 67 Mo. loc. cit. 533; State ex rel. v. Horn, 94 Mo. loc. cit. 165, 7 S. W. 116; Barnes v. Webster, 16 Mo. loc. cit. 265, 57 Am. Dec. 232. In the cases relied on by appellants it was held that a bond given in one capacity could not be resorted to in case the official defaulted in a distinct capacity.

It is suggested the bond could not cover drainage funds of districts organized after the bond was executed. We think this bond is to be held to have been given in contemplation of whatever the law authorized to be done. Among these things was the organization of drainage districts, of the funds of which the treasurer would become custodian by force of the existing statute.

III. It is conceded the verdict is for the amount of the shortage during 1907-1908, with interest from the 29th of January, 1009, at which date Blakemore went out of office. It is contended interest did not begin to accrue until suit was filed. The statute (section 3771, R. S. 1909) provides that the treasurer "* * * at the end of his term * * * shall immediately make such...

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