Barrett v. Stoddard County

• Citation: 152 S.W. 43,246 Mo. 501
• Parties: BARRETT et al. v. STODDARD COUNTY et al.
• Decision Date: 10 December 1912
• Court: United States State Supreme Court of Missouri

152 S.W. 43

246 Mo. 501

BARRETT et al. v. STODDARD COUNTY et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

1. APPEAL AND ERROR (§§ 256, 285) — EXCEPTIONS — RULINGS ON PLEADING.

Where no exception was saved to the court's action in sustaining a motion to strike out a part of the petition, and the ruling was not referred to in the motion for new trial, it cannot be reviewed.

2. ABATEMENT AND REVIVAL (§ 40) — SUGGESTIONS OF DISABILITY — SUFFICIENCY OF SUGGESTION.

In an action to have the county court's selection of defendant bank as a county depositary annulled, an amendment to the petition alleged that since the commencement of the action the bank had sold and assigned its assets to another bank which had assumed all of assignor's liabilities, except that it refused to accept its contract to be county depositary, and that defendant bank was dissolved, but that on the refusal of its assignee to become county depositary it had assigned its contract to another by an illegal assignment. Held, that the amendment was not a suggestion that defendant bank was no longer a legal entity so as to abate the action under Rev. St. 1909, §§ 1916, 1917, providing for the abatement of nonsurviving actions upon suggestion of death or other disability.

3. APPEAL AND ERROR (§ 883) — ESTOPPEL TO ALLEGE ERROR.

Where appellants acquiesced in an objection to proof tendered of the facts alleged in a part of the petition stricken and withdrew the tender of proof, they cannot object on appeal to striking the petition.

4. DEPOSITARIES (§ 6) — PUBLIC MONEYS — BIDS — CONTENTS.

Since Rev. St. 1909, c. 34, art. 8, § 3803, merely relates to the deposit of county funds in selected depositaries, and section 3805 requires the choice of the depositary which offers the highest interest, and neither section provides for requiring the bid to propose to buy county warrants at par, the fact that the order accepting the bid recited that the successful bank proposed to pay par for county warrants, while such provision was not contained in the sealed bid, would not invalidate the acceptance of the bid.

5. DEPOSITARIES (§ 6) — COUNTY MONEYS.

Since Rev. St. 1909, c. 34, art. 8, § 3805, authorized the county court to reject any bid for the deposit of county moneys, the Supreme Court will not review the county court's action in selecting a depositary unless it clearly appears that its discretion has been abused.

6. DEPOSITARIES (§ 7) — BONDS — AFFIDAVITS OF SURETY — "COUNTY DEPOSITARIES."

Rev. St. 1909, § 1226, under the heading "official bonds," providing that no official bond shall be approved until after the sureties swear to a statement, duly attested, stating names, residences, worth, etc., does not require the sureties for county depositaries to file an affidavit of their realty holding; county depositaries not being "public officers," but debtors of the county.

Appeal from Circuit Court, Stoddard County; W. N. Evans, Judge.

Action by J. A. Barrett and others against Stoddard County, Missouri, and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

The following statement of the case is adopted from the statement and brief filed here by appellants:

This is an action by 50 and more resident, solvent, and responsible taxpaying citizens of Stoddard county, Mo., against the above-named defendants, for the purpose of having the action of the county court of said county, in selecting the Bank of Essex, of Essex, Mo., as the depositary of the various funds of the county and the funds under the control of the county court, inquired into and annulled, and for a mandatory injunction requiring said defendants to refrain from all further action under said selection, and to require said county court to either re-advertise and relet said funds or to accept the bid of the City Bank of Bloomfield, Mo., the alleged highest and best bidder.

The facts of the case are as follows: The county court of Stoddard county, Mo., in due season, caused the clerk of said court to publish a notice in the county newspapers to the effect that said court would, on May 6, 1907, "receive sealed proposals from any banking incorporation, association or individual banker" that might desire to be selected as the depositary of the county, and in other respects complying with the law. On May 6, 1911, the day designated, the said county court met, and at noon opened the several bids received, and caused said bids to be spread upon the records of the court. The court thereafter adjourned, taking the matter of a selection of a depositary under consideration until the next day. Among the several bids so received was the bid of the Bank of Essex, of Essex, Mo., which said bid was as follows: "Essex, Mo., May 6, 1907. To the Honorable County Court of Stoddard County, Missouri — Gentlemen: We, the undersigned Bank of Essex, Essex, Mo., bid for the county money for the ensuing two years, as advertised in the Bloomfield Vindicator, 4 and five-eighths per cent. per annum on daily balances. We further agree to maintain a paying station in the city of Bloomfield during the entire period of said contract, and to furnish good and sufficient bond for the faithful performance of the duties thereto, and safe custody of all moneys coming into our hands. This bid is accompanied by a certified check for the sum of one hundred and sixty-four dollars. Respectfully submitted, Bank of Essex, by Phillip Collins, President. Attest: C. L. Harrison, Cashier."

The bid of the City Bank of Bloomfield, Mo., was as follows: "Bloomfield, Mo., May 6, 1907. To the Honorable County Court, Stoddard County, Missouri — Gentlemen: The City Bank of Bloomfield, Mo., desires to be selected as the depositary for the next two ensuing years of the county funds, district school funds, capital school funds, drainage funds, road funds, and all money under and coming under the control of the county court of Stoddard county, Missouri, and agrees to pay interest on daily balances on all funds so deposited at the rate of four and five-eighths per cent. per annum (payable monthly). And further agrees to pay face value for all county warrants, and to execute a sufficient bond as the law directs. City Bank of Bloomfield, Mo., by George Houck, President."

When the court convened the next day, pursuant to adjournment, it took up the matter of the selection of a depositary and made the following order: "The matter of the selection of a county depositary again being taken up for consideration, and the court, after considering all the bids filed by the various banks of the county of Stoddard to act as such depositary for the two years next ensuing this date, is of the opinion that the bid of the Bank of Essex, proposing to pay 4 5/8 per cent. on daily balances, and in addition thereto to buy all warrants issued by said court, not in excess of the revenue, at par, is the best bid offered. It is therefore ordered by the...