Bennett v. Lohman

• Decision Date: 19 December 1921
• Docket Number: No. 22436.,22436.
• Parties: BENNETT, Treasurer, v. LOHMAN.
• Court: Missouri Supreme Court

238 S.W. 792

292 Mo. 477

BENNETT, Treasurer, v. LOHMAN.

No. 22436.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Motion for Rehearing Overruled March 14, 1922.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Action by Marshall Bennett, as Treasurer of Benton County, Ark., against L. C. Lohman. Judgment for the defendant on plaintiff's refusal to plead further after demurrer to his petition was sustained, and plaintiff appeals. Affirmed.

Rice & Rice, of Bentonville, Ark., and Irwin & Haley, of Jefferson City, for appellant.

Ira H. Lohman and A. T. Dumm, both of Jefferson City, for respondent.

GRAVES, J.

The only case we have pending here, according to the short transcript on file, is the case of "Marshall Bennett, as Treasurer of Benton County, Ark., v. L. C. Lohman." We note this because there are additional abstracts of record with reference to another case against L. C. Lohman, filed in the circuit court prior to the one indicated by the short transcript of record filed by appellants in this case. We can only deal with the record before us. This record shows that the circuit court sustained a demurrer to plaintiff's petition, and plaintiff, refusing to further plead, judgment was entered for the defendant as against the plaintiff and his sureties. The record in the case before us consists of the petition, the demurrer, and the judgment thereon, as such judgment is above indicated. The relevancy of the record in a previous case against Lohman can be noted if it becomes important. It can only became important on the statute of limitations. The first petition filed in February, 1915, had as plaintiffs, "Benton County, Ark., and N. S. Henry, Treasurer of Benton County, Ark." July 7, 1919, was filed the present petition. By this we mean the petition upon which the judgment appealed from was rendered. It is entitled "Marshall Bennett, as Treasurer of Benton County, Ark., Plaintiff, v. L. C. Lohman, Defendant." The petition charges:

"The plaintiff for his cause of action against the defendant herein alleges:

"I. That he is the duty elected, qualified, commissioned, and acting treasurer of Benton county, Ark.; that on and prior to the sixteenth day of July, 1914, N. S. Henry was the duly elected, qualified, commissioned, and acting treasurer of Benton county Ark., and continued to serve as such treasurer until the election and qualification of Marshall Bennett as treasurer of Benton county, Ark., and that plaintiff, Marshall Bennett, is the successor in office of the said N. S. Henry as treasurer of Benton county, Ark.

"II. That the Bank of Rogers, of Rogers, Ark., was duly incorporated as a banking corporation under the laws of the state of Arkansas in the year 1912, as provided by the statutes of Arkansas as digested by William F. Kirby in the year 1904, and under the title `Incorporations—Manufacturing and Other Business Corporations, Chapter 31.' And said Bank of Rogers was incorporated with capital stock of $150,000, divided into 1,500 shares of $100 each, and with all the powers and privileges of a banking corporation began to transact a banking business, and continued in such business until the 16th day of July, 1914, when its affairs were taken over in charge of by the Banking Commissioner of the state of Arkansas as an insolvent banking institution, and he still has charge of the same.

"That pursuant to the provisions of Act No. 82 of the Legislature of Arkansas, approved March 17, 1903, and which is section 1990 of Kirby's Digest of the Statutes of Arkansas, and which is in words and figures as follows, to wit:

"`Act 82.

"`An act to amend section 1849 of Sandels & Hill's Digest.

"`Section.

"`1. Amends section 1849 of Sandels & Hill's Digest, relating to the deposit of public funds.

"`2. Act in effect from passage.

"`Be it enacted by the General Assembly of the state of Arkansas:

"`Section 1. That section 1849 of Sandels & Hill's Digest of the Statutes of Arkansas be amended as follows:

"`It shall be unlawful for any officer of this state, or of any county, township, city or incorporated town in this state, or any deputy, clerk or other person, employed by any such officer, having the custody or possession of any public funds, by virtue of his office or employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation whomsoever or whatsoever, or to permit any person or corporation whomsoever or whatsoever, to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to willfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of office; but collectors of taxes, county treasurers and treasurers of cities and incorporated towns may deposit the public funds in their custody in incorporated banks for safe keeping; and the said officers and the sureties on their official bonds, the bank and the stockholders of the bank shall be liable for all funds that such bank on demand shall fail to pay to the person entitled to receive the same.

"`Sec. 2. That this act shall be in force from and after its passage.'

"And Act No. 113 of the Legislature of Arkansas, approved March 28, 1905, and which is in words and figures as follows, to wit:

"`Act 113.

"`An act to provide a depository for the county funds of Carroll, Benton and White counties.

"`Section

"`1. County judges of Carroll, Benton and White counties to receive bids for the case of public funds.

"`2. Bids to be filed with clerk of court stating rate of interest to be allowed on such funds for two years, etc.

"`3. Bids to be opened on April 1, 1905, and every two years thereafter, and depository selected.

"`4. Duty of successful bidder to file bond, etc.

"`5. Certified checks to be returned to unsuccessful bidders.

"`6. Amount of bond required.

"`7. Depository for each county must pay checks of county treasurer promptly.

"`8. Should no bid be accepted the court is authorized to name a depository for the funds.

"`9. New or additional bond may be required at any time of depositories.

"`10. Laws in conflict repealed; act in force from passage.

"`Be it enacted by the General Assembly of the state of Arkansas:

"`Section 1. That it shall be the duty of the county judges of Carroll, Benton and White counties, Arkansas, at the April, 1905, term of the county court, and every two years thereafter, to receive propositions from any bank, banker, or trust company, in said counties, that may desire to be the depository of the public funds of said counties, notice of the intention to so receive such propositions, or bids, shall be published by the clerks of said counties, for a period of not less than twenty days before the commencement of said term, in some newspaper published in his said county.

"`Sec. 2. Any such bank, banker, or trust company desiring to become such depository, shall on or before the first day of the said term of court, file with the clerk of said court a sealed bid, stating the rate of interest offered to be paid by such bidder, for the two years next ensuing, upon the county funds that may be deposited in pursuance to such bids; and said bids shall be accompanied by a certified check of not less than $250, and in such greater amount as the court shall order, to be `stated in the advertisement heretofore required.

"`Sec. 3. At noon, on the said first day of April, 1905, and every two years thereafter, the court shall publicly open each of the said bids so presented, and shall cause each one to be entered of record, and shall select from among such bids, as the depository of all the public funds of the county, including school funds, that bidder offering the highest rate of interest per annum on said funds; provided, said court shall have the right to reject any and all such bids. Said interest shall be computed upon the daily balances to the credit of said county with said depository, and same shall be payable to the county treasurer monthly and shall be immediately placed by said treasurer to the credit of the common school funds of his said county.

"`Sec. 4. It shall be the duty of the successful bidder, within twenty days after the selection of such depository to execute and file with the county clerk a bond payable to his said county, with not less than five solvent and qualified sureties, who shall own in this state real estate, unincumbered, of value as great as the amount of said bond; or to file as the court may direct and deposit as surety for said bond, bonds of the United States of a face value equal to the amount of said bond; or the bond herein required may be given by any authorized guaranty and bonding company doing business in this state, which may be approved by said county court; provided, that any citizen of said counties may appeal from the approval of said bond to the circuit court, in the same manner and with the same effect as is now provided for in the approval of official bonds. All stockholders of any such bank, banker, or trust company shall be liable for all public funds that such bank, banker, or trust company shall fail to pay over on demand to the person entitled to receive the same.

"Sec. 5. After the selection of the depository of the county funds as herein provided, the said court shall return to the unsuccessful bidders the checks deposited by them with their bids; and upon the filing and approval of the bond herein required of the successful bidder, the clerk shall return to such successful bidder the check so deposited by it; provided, that should such successful bidder fail or refuse to file said bond, or should same not be approved because of insufficiency, the amount of said certified check shall go to the general revenue fund of the county as liquidated damages, and the clerk shall proceed to readvertise for...