Cedar Cnty. v. Johnson

• Decision Date: 31 July 1872
• Parties: CEDAR COUNTY, Respondent, v. A. W. JOHNSON et al., Appellants.
• Court: Missouri Supreme Court

50 Mo. 225

CEDAR COUNTY, Respondent,

v.A. W. JOHNSON et al., Appellants.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Cedar Circuit Court.

Chandler & Buller, for appellants.

The county, being a quasi corporation, is included in the general term ““person” (Wagn. Stat. 1302, § 1) unless expressly excepted. (Dunklin County Court v. Dunklin County, 23 Mo. 449.)

The classes of bonds which are excepted from the operation of the first section are expressly enumerated in the fourth, which shows that the attention of the Legislature was directed to the object, and they did not see proper to include bonds given to counties, for the use of school townships, in those exceptions. (Ætna Ins. Co. v. Monaghan, 38 Mo. 432.)

J. P. Tracy, for respondent.

BLISS, Judge, delivered the opinion of the court.

The defendants were sued in attachment upon a bond given by them, Johnson being principal, and Blake and Sherrell as sureties, to plaintiff for the use of one of its school townships. One of the sureties sets up as a defense that he gave the judges of the County Court notice in writing to commence suit against the principal according to the statute, and that such suit was not commenced within thirty days thereafter. The court held it to be no defense to the action, and this is the error assigned.

Section 1 (Wagn. Stat. 1302) of the act provides that any person bound as surety, etc., may require, in writing, the person having the right of action forthwith to commence suit against the principal; and section 2 provides that if it be not so commenced within thirty days he shall be exonerated. Does this section apply to bonds due the State and county when the duty to bring suit devolves upon these officers? The affirmative is claimed by the counsel, so far as the bonds for school moneys are concerned, because they are not included in the exception made by section 4 of the act.

As to the bonds mentioned in section 4, the persons having the right of action are private persons or corporations, although the bonds may be given nominally to the State. It was necessary, then, to expressly exclude them from the operation of the first section. But bonds due the State or county for a public object are of a different character. No person has any special interest in this collection, and one who becomes a surety on such public bonds must hold himself ready to pay it if the principal fails. If he fears his insolvency he should pay the obligation and collect it, if he can, of his principal; but he will not be discharged on account of the neglect of public officers.

Appellants claim that the phrase “person having such right of action” includes counties, because of the provision in section 4. of article II, upon the construction of statutes (Wagn. Stat. 887), that the term ...