State v. Harter

Citation188 Mo. 516,87 S.W. 941
PartiesSTATE ex rel. SCHOOL DISTRICT OF SEDALIA v. HARTER et al.
Decision Date24 May 1905
CourtUnited States State Supreme Court of Missouri

1. Rev. St. 1899, § 4274 (Rev. St. 1889, § 6776), provides the period within which civil actions shall be commenced, after the cause of action has accrued, as follows: "Within three years: First, an action against a sheriff, coroner, or other officer, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution or otherwise," etc. Section 9864 requires the board of a school district to organize by electing a president and a treasurer. Section 9868 requires the treasurer to give a bond conditioned "that he will render a faithful and just account of all money that may come into his hands as such treasurer, and otherwise perform the duties of his office according to law." Section 9869 provides that the treasurer "shall be responsible on his `official' bond," etc. Section 9871 requires the treasurer to make annual settlements, and prescribes that "at the expiration of his term of office" he shall deliver over "to his successor in office * * * all moneys or other property in his hands," etc. Held, that a treasurer of a school district is a public officer within the meaning of section 4274.

2. Since 1835 there has been in Missouri a separate statute limiting the time within which actions against constables must be commenced (Rev. St. 1835, p. 116, § 4), which limitation was in 1889 extended from two to three years (Rev. St. 1889, § 2377; Rev. St. 1899, § 882). The term "or other officer," used in Rev. St. 1899, § 4274, limiting actions against a sheriff, coroner, or other officer to three years after accrual of cause, was not in the original act of 1848 (Acts 1848-49, p. 75, § 5), which related only to a sheriff or a coroner, the words being inserted in the revision of 1855 (Rev. St. 1855, p. 1048, c. 103, art. 2, § 4), in which revision there was a separate statute of limitations of two years as to constables (Rev. St. 1855, p. 347, c. 29, § 6). Held, that the term "or other officer," in section 4274, applies to a treasurer of a school district, and bars a civil action against him and his sureties on his official bond, if not brought within the time limited.

3. In construing a statute all parts thereof must, if possible, be given a meaning and effect.

Appeal from Circuit Court, Pettis County; Geo. F. Longan, Judge.

Action by the state, on the relation and to the use of school district of Sedalia, against Morris Harter and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. H. Bothwell and Chas. E. Yeater, for appellant. Barnett & Barnett and Sangree & Bohling, for respondents.

MARSHALL, J.

This is a suit begun on October 11, 1898, upon a bond for $20,000, given by the defendant Harter, as treasurer of the relator school district, and is against the principal and sureties in the bond. The trial court sustained a demurrer to the petition, and the relator appealed.

The petition alleges that the relator is a duly organized and existing body corporate; that on the 22d of June, 1889, the defendant Harter, a member of the board of directors of said school district, was elected to the office of treasurer of the board for the year commencing July 1, 1889, and thereafter on the next day executed his bond as such treasurer, with his codefendants herein as his sureties, and "that said bond was so conditioned as to be null and void if said Morris Harter should render a faithful and just account of all money that might come into his hands as treasurer of the said board of directors of said school district, and if he should otherwise perform the duties of his office according to law"; that said bond was duly approved by the board, and has become misplaced or stolen or lost, and cannot be filed with the petition; that on the 1st of January, 1883, said school district issued and sold 30 bonds of said district, each for the sum of $1,000, expressed to be for value received, payable to the bearer in 20 years after date, redeemable at the pleasure of said school district at any time within five years from said date, at the American Exchange National Bank of New York, with 6 per cent. interest per annum from date, payable semiannually, and that the said bonds were sold on the 3d of November, 1883; that thereafter, on the 25th of April, 1889, the board of directors of said school district ordered that the bonds aforesaid be refunded under the provisions of the statute laws of this state, and that for such purpose it was ordered that bonds of the amount of $30,000 be issued, bearing 5 per cent. interest, payable in 20 years, with the privilege and option to redeem at any time after the expiration of 5 years, and that the secretary cause said bonds to be prepared, and, when prepared, to be "exchanged for the outstanding bonds of the issue of January 1, 1883, or be sold for the purpose of obtaining the money with which to pay off the outstanding issue aforesaid"; that said refunding bonds were issued as ordered; that on the 25th of July, 1889, bids for the sale of said refunding bonds were opened by the board, and one James C. Thompson was found to be the best and highest bidder therefor, and his bid was accepted, and the bonds were sold to him at the price of $30,000 and a premium of $365, "and it was thereupon duly ordered by said board, at said meeting, that Thompson turn over the proceeds of sale, the purchase price of said bonds, at once"; that, pursuant to said order, said refunding bonds were placed in the hands of defendant Harter, the treasurer of said board, to be turned over by him to said Thompson in exchange for said $30,000 and said premium, "in order that said moneys should be used in paying off and discharging said 30 bonds of the issue of January 1, 1883, as aforesaid; and plaintiff avers that defendant Harter did not exchange said bonds for said money as aforesaid, and use the same in paying off and discharging said bonds of the issue of January 1, 1883; and plaintiff says that, on the contrary, the said defendant Harter, the treasurer of the said school board of said school district, failed to perform the duties of his office according to law in this, namely: The said James C. Thompson, on or about the ______ day of November, 1889, paid to said Harter, as treasurer of said school district, $30,000, and more, for said bonds, for which he, the said Morris Harter, as said treasurer, delivered the said 30 bonds of the issue of April 25, 1889, to said James C. Thompson, and thereafter the said Harter delivered back to said James C. Thompson the said moneys, the proceeds, as aforesaid, for the sale of said bonds of the issue of April 25, 1889, and the said Thompson converted the same to his own use and benefit, and the said Thompson was and now is insolvent, and has fled from the country as a fugitive from justice, and all of said moneys have thereby been wholly lost to the said school district; and plaintiff avers that the said Morris Harter, the treasurer as aforesaid, has not rendered a faithful and just account of the moneys, and also avers that the said bonds of said issue of April 25, 1889, for which said moneys were first received as aforesaid, were sold by said James C. Thompson for value to various purchasers, and the same are now held and owned by various persons, and are binding obligations upon the said school district; and plaintiff says that said defendant Morris Harter, the treasurer of said school district as aforesaid, failed to perform the duties of his office according to law, in this, namely: The said Morris Harter, treasurer as aforesaid, failed to use the said moneys, the proceeds aforesaid of the sale of said bonds of the issue of April 25, 1889, in discharging and paying off the said 30 bonds of the issue of January 1, 1883, and failed to procure and burn said latter bonds, by reason of which the same were negotiated and passed current in the market as unmatured negotiable instruments and commercial paper, and the same are now held by various purchasers in good faith for value, and are binding obligations upon said school district, and which said bonds the said school district is bound in law to pay in full; and plaintiff says that the said defendant Morris Harter, the treasurer of said school district as aforesaid, has not rendered a faithful and just account of the aforesaid moneys, the proceeds of the sale as aforesaid of said bonds of the issue of April 25, 1889, which came into his hands as such treasurer as aforesaid, and has failed and refused to render any account whatever of said moneys to said school district, and said defendant Morris Harter, as treasurer as aforesaid, has not settled in accordance with the law with the said school district for the moneys and funds received by him as aforesaid for the said bonds of said issue of April 25, 1889, received by him, as aforesaid, as such treasurer." The prayer of the petition is for a judgment of $20,000. The defendants demurred to the petition on the grounds: First, that the petition does not state facts sufficient to constitute a cause of action; second, because several causes of action repugnant to each other have been united and commingled with each other in said petition and in the same count of the petition; third, because on the face of the petition the statute of limitations has run against the cause of action, if any, set forth in said petition.

1. The point most strenuously discussed by counsel is as to whether this action, which was begun on the 11th of November, 1898, is barred by the three-year statute of limitation, being section 4274, Rev. St. 1899, which is the same as section 6776, Rev. St. 1889. That section of the...

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