Campbell v. Polk Cnty. Court

• Decision Date: 31 October 1882
• Citation: 76 Mo. 57
• Parties: CAMPBELL, Appellant, v. POLK COUNTY COURT.
• Court: Missouri Supreme Court

76 Mo. 57

CAMPBELL, Appellant,

v.POLK COUNTY COURT.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Polk Circuit Court.--HON. R. W. FYAN, Judge.

AFFIRMED.

Rechow & Underwood for appellant.

J. B. Upton and B. J. Emerson for respondents.

RAY, J.

Plaintiff sued defendants on a warrant drawn on the “Internal Improvement Fund,” of Polk county. The suit was commenced on the 6th day of April, 1876. The petition charges that plaintiff is the duly appointed administrator of the estate of E. M. Campbell, deceased; and that the defendants are the duly elected, qualified and acting members, composing the county court of Polk county, and as such, are trustees of and have charge of the “Internal Improvement Fund” of said county; that the county court of Polk, as such trustees of said fund, on the 11th day of May, 1860, executed and delivered to one Henderson Bradshaw, their certain order to the treasurer of Polk county, commanding him to pay said Bradshaw the sum of $463.15, out of the “Internal Improvement Fund;” which said order or warrant was presented for payment on same day, and payment refused by the treasurer of said county; that afterward, in June, 1860, said warrant was duly assigned to E. M. Campbell; and that after that, in November, 1866, said warrant was lost or destroyed; and that thereafter, on the 22nd day of April, 1874, the county court of Polk county executed and delivered to the plaintiff a duplicate of said warrant, which is filed with the petition and reads as follows, to-wit:

“The treasurer of Polk county will pay to Henderson Bradshaw, or order, the sum of $463.15, out of the ‘Internal Improvement Fund.’ Given at the court house this 11th day of May, 1860.

(Signed)

MOSES P. HART, President.

JAMES M. JONES, Clerk.

Duplicate.--This duplicate issued in open court, at April term, third day thereof, the same being the 22nd day of April, 1874.

(Signed)

J. W. FARMER, Ch. Co. Court.

Attest: A. C. LEMMON, Clerk.”

The petition then charges that said warrant remains due and unpaid; wherefore plaintiff asks judgment for the said sum and interest thereon, from the 11th day of May, 1860.

The answer contains three defenses: 1st, A general denial; 2nd, The ten year statute of limitation; and 3rd, “A former adjudication” to the following effect: That on the 13th day of August, 1867, E. M. Campbell, in his life-time, commenced an action in the circuit court of Polk county, against defendant, the subject matter of which, was the same warrant now sued on, and alleged to have been executed by defendant; that the issue in said former action was the same as in this action, to-wit: Whether defendant was indebted to said Campbell on said warrant; that, at the spring term of said court, for the year 1869, said cause was tried, and a judgment rendered for defendant, which judgment is now in full force and effect, and is a bar to any further action on said warrant.

To this answer there was a general denial, and neither party requiring a jury, the cause was submitted to the court for trial; whereupon the plaintiff in support of his said action introduced in evidence: 1st, The said duplicate warrant; 2nd, The order of the Polk county court, at its April term, 1874, directing the issuance of said duplicate; and lastly he offered J. W. Farmer as a witness, who testified that in 1863, 1864, 1865, 1866 and 1867 he was the agent of said E. M. Campbell, and as such had in his possession the warrant, of which the one here sued on is a duplicate; that he presented the same to the treasurer of Polk county, W. R. Devin, but never received anything on the same; that said warrant had an assignment on the back, by Henderson Bradshaw to E. M. Campbell, and that there was this further entry on said warrant: “Presented for payment this -- day of ____, 1860, and no money in the treasury;” that in 1866 his store was robbed, and he had never been able to find the warrant since. It had been lost, destroyed or stolen. This was all the evidence offered by the plaintiff.

The defendants, to sustain the issue on their side, offered and read in evidence the record in the case of E. M. Campbell v. Polk County, commenced in the circuit court of Polk county in September, 1867, and terminated in the Supreme Court in January, 1872, together with the judgment and opinion of the Supreme Court in said cause, reported in 49 Mo. 214. The petition in that case charges the issuance of the warrant in question, on the day in question, and payable out of the fund in question, as in this case; and that the same was duly assigned to said E. M. Campbell, and by him presented to said county treasurer for payment on the 12th day of May, 1860, who indorsed thereon, “No money in the treasury; therefore payment is refused.” Said petition also says, that the amount of said warrant, with six per cent interest from date of presentment, is due and unpaid, and for which it asks judgment. Defendant's answer denies the issuance of said warrant, and further denies that defendant is indebted to plaintiff, in said sum, or in any amount whatever. Said cause was tried in said court, on said issues, in June, 1869, and the issues were found for the defendant and judgment accordingly. The case was appealed to the district court, where the judgment of the circuit court was affirmed, from which the cause was further appealed to this...