City of Harrisonville v. Porter

• Decision Date: 31 October 1882
• Citation: 76 Mo. 358
• Parties: THE CITY OF HARRISONVILLE v. PORTER et al., Appellants.
• Court: Missouri Supreme Court

76 Mo. 358

THE CITY OF HARRISONVILLE

v.PORTER et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

REVERSED.

Comingo & Slover with Wooldridge & Daniel for appellants.

The condition of the bond sued on is for the faithful performance by Porter of his duties “as marshal.” The obligation of sureties cannot be extended by implication. Blair v. Ins. Co., 10 Mo. 559; Nolley v. Callaway, 11 Mo. 447; St. Louis v. Sickles, 52 Mo. 122; State v. Johnson, 55 Mo. 80; State v. Dallas, 72 Mo. 331; State v. Boon, 44 Mo. 254; Miller v. Stewart, 9 Wheat. 681; Board Supervisors v. Ehlers, 45 Wis. 281; People v. Moon, 3 Scam. 123 Commonwealth v. Toms, 45 Pa. St. 408; State v. Corey, 16 Ohio St. 17; Williams v. Morton, 38 Me. 52; U. S. v. Cushman, 3 Sawyer 424; Leggett v. Humphreys, 21 How. 75; Smith v. U. S., 2 Wall. 235.

R. T. Railey and R. O. Boggess for respondent.

HOUGH, C. J.

This is a suit on the following bond:

Know all men by these presents, that we, E. B. Porter, as principal, and D. M. McClintock, J. E. Jackson, T. D. Evans, John Angle and John T. Weathers, as securities, are held and firmly bound unto the city of Harrisonville, in the sum of $3,000, for the payment of which, we hereby bind ourselves, and our heirs, executors and administrators. Witness our hands and seals, this 9th day of May, 1877. The condition of the above bond is such, however, that whereas the said E. B. Porter was, on the 1st day of May, 1877, duly elected to the office of marshal of the city of Harrisonville, in the State of Missouri, and has been duly commissioned: Now, therefore, if the said E. B. Porter shall discharge all the duties of said office, according to the laws of the city and State, and shall faithfully and punctually pay over to the proper persons and the said city of Harrisonville, all moneys and effects to them or her in anywise belonging or pertaining, that may come into his hands, and by his negligence as such official does not--then this obligation to be void; otherwise to remain in full force and effect.

Said bond, after being duly signed and sealed, by said parties, was approved by the council, June 13th, 1877.

By the 44th section of the charter of the city of Harrisonville, (Acts 1872, p. 373,) the marshal is required to give bond in a sum not exceeding $2,000, for the faithful discharge of his duties as city marshal. By the 45th section, the city marshal is made ex-officio collector of the revenue of said city, and is required “to give such bond, with penalty and security conditioned for the faithful performance of his duties in that respect, as the city council may direct.” It does not appear that Porter ever gave any bond as collector.

The ordinance of said city, in force at the time of the execution of the bond sued on, and presumptively during his term of office, required the marshal to collect all fines assessed by the mayor, and all costs accruing in the prosecution of any suit, and immediately pay...