Clark County v. Hayman
| Decision Date | 01 February 1898 |
| Citation | 44 S.W. 237,142 Mo. 430 |
| Parties | Clark County v. Hayman et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. Otho S. Callihan, Special Judge.
Affirmed.
T. L. & S. J. Montgomery and Berkheimer & Dawson for appellants.
(1) The petition does not set forth any breaches of the bond, and does t set out any amount of money coming into the hands of the treasurer; refers to no settlement had, nor does it state that the treasurer was ever ordered to turn over any part of the money sued for. No exhibits are filed with the petition and defendants are not advised of what they are to meet, and the petition fails to state any cause of action against defendants. State v. Thomas, 17 Mo. 503. (2) The petition should state what money the treasurer received, the amount he has not accounted for, and in what respect he has failed to do his duty. Murphree on Off. Bonds, secs. 593 540; State ex rel. v. Sappington, 67 Mo. 529. (3) The settlement of the executors did not bind either Penn or his securities, as he did not die while in office, and there was no authority for the executors to make said settlement at the time. R. S. 1889, sec. 3175; Cole Co. v Dallmeyer, 101 Mo. 63. (4) This section creates a liability not known to the common law and should be strictly construed. Sutherland on Stat. Con. [1 Ed.], sec. 371, and cases cited. (5) The executors can not create a liability even against James R. Penn. Crowley v. McCrary, 45 Mo.App. 350; Studebaker Bros. v. Montgomery, 74 Mo. 101; Church v. McElhinney, 61 Mo. 540; Richardson v. Palmer, 24 Mo.App. 480. (6) The settlement, to be binding upon the principal and securities, must be made during his term of office. Murphree on Off. Bonds [1 Ed.], sec. 605; Taylor v. Auditor, 4 Ark. 574; Grayham v. Co. Court, 9 Dana, 192; Rhodes v. Com. Wealth, 6 B. Mon. 359. (7) Settlements made with the county court are not judgments but mere accounting between principal and agents. State ex rel. v. Ewing, 116 Mo. 136; State to use v. Smith, 65 Mo. 469; Cole Co. v Dallmeyer, 101 Mo. 63. (8) Settlements are not binding on the securities to which they are not parties. Thomas v. Hubbell, 15 N.Y. 405.
John A. Whiteside and N. T. Cherry for respondent.
(1) The allegations in the petition as to the breach of the bond are sufficient. 5 Am. and Eng. Ency. of Law, 357; Green and Myers, Pl. and Pr., sec. 695; Chitty, Pl. [16 Ed.], pp. 345, 346; Bricker v. Stone, 47 Mo.App. 339. (2) The laws requiring warrants for official disbursements have no application to the duty of a retiring treasurer in turning over his charge to his successor. State v. Pechstien, 7 Mo.App. 339; R. S. 1889, sec. 3175; Coe v. Nash, 40 S.W. 235. (3) In the event of the death of the treasurer, at the expiration of his term of office, the statute expressly provides that the administrator or executor of the deceased treasurer shall make a settlement of his accounts with the county court, if the treasurer has not done so before his death. R. S. 1889, sec. 3175. (4) The settlement made by Penn's executors was prima facie evidence against his securities. State ex rel. v. Ewing, 116 Mo. 136. (5) When respondents proved the deficiencies in the funds sued on by treasurer Penn's accounts and settlements they had made out a prima facie case. Mahon et al. v. Kinney Co., 28 S.W. 1024.
This action was instituted by Clark county in this State against Erbine E. Hayman and Robert McLachlan, executors of James R. Penn, deceased, late treasurer of said county, and the other defendants as his bondsmen on his official bond as treasurer of Clark county, to recover the penalty of said bond, to wit, $ 35,000, to be satisfied, however, by the payment of $ 145.51 belonging to the M. & M. Railroad Funding Bond fund, belonging to said county, $ 549.57, belonging to the contingent fund of said county, $ 511.19 belonging to the road district fund of said county, $ 362.08 belonging to the road damage fund of said county, and $ 195.22 belonging to the A. & N. C. R. R. fund of said county. James R. Penn served two terms as treasurer of Clark county. His first term of two years expired January 1, 1891, and he entered upon his second term, the term for which the bond above sued on was given, on January 1, 1891. After the expiration of his second term, some time in May, 1893, he died testate and insolvent.
This action is based on balances alleged to be shown by the treasurer's accounts to be due the county on the several funds in his hands at the expiration of his term, December 31, 1892.
The answer contains three defenses: first, a general denial; second, that the defalcation occurred, if at all, during Penn's first term as treasurer for which the sureties on his second bond were not liable; third, that the county court had employed expert accountants to examine Penn's books and they reported that he owed the county $ 750 and that the court accepted that amount as the balance due and his executors had discharged that balance.
The reply denied that the defalcation occurred during the first term of Penn as treasurer; denied that the county court had accepted the finding of the experts as the balance due or that it had been paid.
I. The petition is sufficient after verdict. It avers the election of Mr. Penn as treasurer of Clark county at the general election in 1890; that on the eleventh day of November, 1890, he executed the bond sued on; that it was filed with the county clerk in his office, December 12, 1890, and was duly approved by the county court; that he took upon himself the duties of treasurer of said county on January 1, 1891, and assumed to act and did act as treasurer of said county for the term of two years and until January 1, 1893, when his term having expired, he turned over the office to his successor; that a duly certified copy of his bond as treasurer was filed with the petition; that as such treasurer and during said term he received large sums of money belonging to the M. & M. Funding Bond fund, the contingent fund, the road district fund, the road damage fund, and the A. & N. R. R. fund, all belonging to said county of Clark. That he had broken the conditions of his bond as treasurer in that having received said money belonging to said several funds of the county he had neglected, failed and refused at the expiration of his term of office to pay over to his successor in office the money in his hands as treasurer belonging to said funds of said county, to wit, the several amounts hereinbefore specified belonging to each of said funds, and that his sureties and executors had likewise failed and refused to pay over the balances in his hands due said funds, or any part thereof.
The exact balances thus are alleged which he has failed to account for to his successor. It is not essential that the petition should aver an order by the county court upon the treasurer to turn over said balances to his successor. Such an order is not a condition precedent to the right of the county to sue. Section 3175,...
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