Adair Cnty. v. Ownby

• Decision Date: 30 April 1882
• Parties: ADAIR COUNTY v. OWNBY AND ELY, Cross-appellants.
• Court: Missouri Supreme Court

75 Mo. 282

ADAIR COUNTY

v.OWNBY AND ELY, Cross-appellants.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Adair Circuit Court.--HON. J. W. HENRY, Judge.

REVERSED

James Ellison for appellant Ely.

Harrington & Cover and Hooper for appellant Ownby.

NORTON, J.

It appears from the record in this case that Adair county instituted in the Adair county circuit court, a suit by attachment on the bond of Ownby, as county collector, and that on the 1st day of June, 1867, judgment was rendered in favor of the county for about $6,000, and on the same day D. A. Ely, one of the sureties on Ownby's bond, was appointed receiver to take charge of the assets attached and out of them pay off said judgment. It also appears that said Ely, as receiver, paid off said judgment and undertook to settle with the court his accounts as receiver, and for this purpose made a report or statement of account, the correctness of which being drawn in question, it was referred to a referee. Upon the coming in of the report of the referee, both parties, Ownby and Ely, filed exceptions thereto, which being heard and considered by the court, were in part sustained and in part overruled, and a judgment finally rendered against Ely, directing him to pay and deliver, on or before the first day of the next term of the court, to the clerk thereof, the sum of $3,922.16, also all the uncollected assets of every kind in his hands as receiver, which money and assets were ordered to be held by the clerk till the further order of the court. Both Ownby and Ely appeal from the action of the court.

1. APPEAL: res judicata.

On the part of Ely it is insisted that error was committed by the court in charging him, as receiver, with three certain county warrants and interest thereon, received by him respectively from Chandler, Ringo and Smith, and in refusing to credit him with the whole amount of what is known in the history of this case as the Reed warrant instead of the sum paid to Reed to procure the warrant.

This case has heretofore been before this court on the very same evidence on which it is now here, and is reported in 59 Mo. 437, to which reference is here made for a full history of it. When this case was here before these same warrants were in controversy, and it was urged in that case that the court erred in not charging said Ely with the Chandler, Ringo and Smith warrants, and in not crediting him with the full amount of the Reed warrant, and it was upon that ground chiefly that the judgment was reversed, this court holding that the Chandler, Ringo and Smith warrants ought to have been charged to Ely and were not, and that he was only entitled to a credit for what the Reed warrant cost after first charging himself with the whole amount of it. When the case went back, the circuit court followed the directions of this court, and the obedience of that court to the mandate of this court is now assigned for error. It was expressly held when the case was here before “that the court erred in striking out...