Finney v. State

• Decision Date: 31 October 1845
• Citation: 9 Mo. 632
• Court: Missouri Supreme Court
• Parties: FINNEY, DOBYNS & SHADE v. THE STATE OF MISSOURI, USE OF, &C.

9 Mo. 632

FINNEY, DOBYNS & SHADE

v.THE STATE OF MISSOURI, USE OF, &C.

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GAMBLE & BATES, Appellants. 1st. On the demurrer. The plaintiffs' declaration leaves the money in the hands of O'Neil until his death, and shows no person in existence who was permitted by law to pay it to his successor, or to meddle with it. No administration appears to have been taken on the estate of O'Neil. There was then no breach of the condition of the bond. This case is not like the case of Darland v. Cotton et al., 9 Mo. R. 356. There, there was a person in being, who was bound to pay the money to the succeeding administrator; here, there was none. 2nd. The inquiry by the jury was wrong. By statute (Rev. Code, p. 431, § 7), the truth of the breach is to be found. An inquiry of this sort, must be into the truths of the whole breach, so far as it is material to the recovery, and must respond to it as a verdict does to an issue. And a verdict finding part of an issue, and leaving a material part undecided, is bad. The jury must find at least the substance of every issue submitted to them.

CALLAHAN, for Appellee.

I. The appellee contends that the court below did not err in overruling the demurrer. Because, 1st. It was not necessary to aver that there had been an order of the Probate Court for the payment of the money sought to be recovered in this action. The State, use of Darland, &c., v. Porter, Kay & Cotton, 9 Mo. R. 356. 2nd. It was enough to assign the breach in the words of the condition of the bond; and the omission of the allegation that O'Neil's executor or administrator had not paid the aforesaid money, was not material. 3 Saunders, 411, n. 4, Arlington v. Merrick; 2 Hen. & Munf. 446, 459; 6 Wend. 454; 1 Bos. & Pull. 460; 1 Wend. 518, Pevey v. Sleight. But, 3rd. There is, substantially, such allegation in the declaration, the words, “his legal representatives,” as therein used, implying and comprehending his executor or administrator (if he had such, for the record does not show that he had). 2 Saund. 61, g. note 9; 1 Saund. 235, a. note 8, last paragraph; 5 Mo. R. 147, at p. 164, Wear & Hickman v. Bryant; Rev. Stat. 1835, 394, Limitations, art. 2, § 6; art. 3, §§ 4, 5, p. 44; Administration, art. 1, § 34. 4th. The declaration throughout is sufficient on general demurrer. Rev. Stat. 1835, 430, Penal Bonds, § 1; 9 Mo. R. 218, Little v. Mercer; Rev. Stat. 1835, 458, Practice at Law, art. 3, § 14; new Rev. Stat. 811, Practice at Law, art. 3, § 16.

II. As to the error thirdly assigned, nothing can be successfully or properly urged here against the action of the jury in the Circuit Court. Because, 1st. No exception was thereto taken in the Circuit Court, and the Supreme Court will not entertain any objection in that behalf, which was not raised in the court below. 4 Mo. R. 446, Davidson v. Peck; 9 Mo. R. 315, Fresh v. Million, decided at the last July term of this court; 6 Mo. R. 50, Griffin & Kinote v. J. & C. Samuel; 8 Mo. R. 59, Cornelius v. Grant. But, 2nd. There is not anything that appears to be exceptionable in the inquiry, or the manner thereof; certainly nothing which the court here may not supply or amend. Rev. Stat. 1835, 468, 469, Practice at Law, art. 3, §§ 6, 7, 8; new Rev. Stat. 827, 828, Practice at Law, art. 3, §§ 6, 7, 8.

III. The appellants having withdrawn (as it is understood) all objection to the subject-matter of their fourth assignment of error, the appellee, of course, need say nothing in relation thereto.

SCOTT, J.

This was an action of debt on an administration bond executed by Hugh O'Neil, as administrator of the estate of Michael Reilly, deceased, with the appellee, Finney, and others as his securities. Philip McGowen was joint administrator with Hugh O'Neil. McGowen died, and after him O'Neil. The suit was against the securities of O'Neil. The declaration alleges that McGowen died, and that after his death, O'Neil, the surviving administrator, became possessed of $2,877 13, belonging to the estate of Michael Reilly, deceased. It is further alleged, that after O'Neil became possessed of said sum of money, and before payment and delivery thereof according to law, the said O'Neil died, and Peter A. Walsh, as public administrator, took charge of the estate. The breach assigned is, that neither the said McGowen nor O'Neil, during their joint lives paid, nor the said O'Neil after the death of said McGowen, would or did faithfully account for, pay and deliver the said sum of money according to law, and that since the death of said O'Neil, his legal representatives, or any of them have not paid or delivered to Peter A. Walsh, the successor of O'Neil, the said sum of money, or any part thereof.

The defendants below prayed oyer of the bond, which being granted, they demurred to the declaration. The demurrer was overruled. A jury was then sworn to try the truth of the breach of the condition of the bond, alleged in the declaration, and to assess the damages arising thereon. The jury by their verdict find that neither McGowen or O'Neil, in their life-time, nor O'Neil after the death of McGowen, did pay over the...