Cole County v. Dallmeyer
| Decision Date | 22 March 1890 |
| Citation | 13 S.W. 687,101 Mo. 57 |
| Parties | Cole County, Appellant, v. Dallmeyer, Adm'r |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. E. L. Edwards, Judge.
Reversed and remanded.
Smith Silver & Brown for appellant.
(1) The probate court had jurisdiction of the suit; probate courts in the allowance of demands, are on the same footing with courts of general jurisdiction. Rothman v Schmucker, 94 Mo. 139; Johnson v. Beasley, 65 Mo. 250; Henry v. McKerlie, 78 Mo. 416; R. S. 1879, sec. 192. (2) Jurisdiction once conferred on a court is never divested, except by express words of exclusion. Tackett v. Vogler, 85 Mo. 480; State v. Court, 38 Mo. 403; Com. v. Hudson, 11 Gray, 65. Hence the statute authorizing proceedings in the county court (R. S. 1879, secs. 5378-9) did not divest the probate court of authority in the premises. Its provisions are merely cumulative. Gooch v. Stephenson, 1 Shepley (Me.) 371; Crittenden v. Wilson, 5 Cowen, 165; Barden v. Crocker, 10 Pick. 383. (3) Besides, settlements had in the county court under said statutory provisions are but adjustments of accounts between the parties; are not regarded as judicial proceedings. County v. Phillips, 45 Mo. 75; State v. Roberts, 62 Mo. 388; Price v. Johnson County, 15 Mo. 433. (4) The probate court would rightly have had jurisdiction even if the action were on the treasurer's official bond. State v. Paul, 21 Mo. 51; Jewett v. Weaver, 10 Mo. 234. (5) The county was not restricted to an action on the treasurer's official bond, but could proceed against him personally. Walton v. United States, 9 Wheat. 651; State v. Grace, 26 Mo. 90. (6) The county was competent to maintain the suit in its own name. State v. Ruby, 77 Mo. 610; LaFayette County v. Hixon, 69 Mo. 581. (7) The adjournment order of the probate court to August 26, 1885, was sufficiently vacated by the entry "vacated" on the order. Gillett v. Booth, 95 Ill. 183. (8) The objection to the order of adjournment of August 26, 1885, is not well taken; the entire order must be read together and when so read it is clear that the court intended to fix an adjourned term for September 10 following. See Dulle v. Deimler, 28 Mo. 585. (9) The demand was sufficient in the probate court where formal pleadings are not required. Wood v. Land, 35 Mo.App. 381. Besides, where a pleading is not sufficiently definite, the proper remedy is by motion to make it so. R. S. 1879, 3529; State v. Sherman, 42 Mo. 210; Lingenfelter v. Ins. Co., 19 Mo.App. 252; Atterbury v. Powell, 29 Mo. 429; Meyer v. Chambers, 68 Mo. 656. (10) The demand in this case was not on an account stated; it did not aver a settlement nor an assent to a balance found. Van Blarcom v. Donovan, 16 Mo.App. 535; Ward v. Farrelly, 9 Mo.App. 370; Powell v. Railroad, 65 Mo. 658; Cape v. Kimmel, 58 Mo. 210. (11) Judge Stampfli's statement as contained in the bill of exceptions to the effect that the balance was charged to the interest fund because it could best be spared there, although it was not certain the default was in that fund, does not bar recovery by the county, because the county records and Schmidt's own books and receipts show to a mathematical certainty the default was in the interest fund and in no other. Besides, even if the evidence showed the deficit to be in a fund other than the interest one, the county could still recover. The code recognizes a plain distinction between a variance and a total failure of proof. Leslie v. Railroad, 88 Mo. 50; Olmstead v. Smith, 87 Mo. 603; Meyers v. Chambers, 68 Mo. 626. (12) The case was one for the jury. When there is any evidence to support plaintiff's action it must be submitted to the jury. Twohey v. Fruin, 96 Mo. 104; Walsh v. Morse, 80 Mo. 568.
W. M. Williams and Edwards & Davison, for the respondent.
(1) The affidavit made to the claim is insufficient under the statute. (2) The notice given the defendant of the presentation of the demand is insufficient because the same was not given to any term of the probate court of Cole county, nor at any adjourned term of said court, nor is the same signed by any one authorized by law. (3) The probate court had no jurisdiction to hear and determine the same at the time it did, on the eleventh day of September, 1885, said day not being a part of the regular term of its said court, nor an adjourned or special term. (4) The court erred in overruling the motion to dismiss this proceeding for want of jurisdiction. (5) The circuit court erred in permitting the plaintiff over the objection of the defendant to introduce any evidence under the pleadings in this case. (6) The county court had no authority to direct the prosecuting attorney to prove up a claim in the probate court against a dead man. R. S. 1879, secs. 513, 514, 5388. (7) If Schmidt was delinquent as county treasurer, the remedy against him was on his bond and not in the probate court against his administrator. R. S. 1879, sec. 5378; Murfree on Official Bonds, sec. 482; Hunnicut v. Kirkpatrick, 39 Ark. 69; Haynes v. Butler, 30 Ark. 69; Jones v. State, 14 Ark. 170; Adams v. Harper, 20 Mo.App. 684; Ray County v. Barr, 57 Mo. 290; Gaston v. Potts, 73 Mo. 284; Cohen v. Atkins, 73 Mo. 163. (8) The court erred in permitting the plaintiff to introduce the record of what purported to be a settlement between Cole county and the estate of Frank Schmidt, it not being shown by said record that the estate of said Schmidt or the executrix thereof, or any one for them, was present when any such pretended settlement was made. Ray County v. Barr, 57 Mo. 290. (9) The court erred in permitting parol evidence to explain and contradict the records of the county court. Jackson County v. Wood, 84 Mo. 489; Mobley v. Nave, 67 Mo. 546; Ainge v. Corby, 70 Mo. 257. (10) If the respondent was delinquent as county treasurer his successor in office was the proper party to institute suit to recover the deficiency and not Cole county. R. S. 1879, sec. 5378. (11) The demand of appellant was not offered in evidence and though attached to the notice it was not in evidence before the jury until made so by being offered in evidence. (12) There was no claim made against Schmidt in his lifetime, and the probate could not allow a claim accruing after his death. Church v. McElhaney, 61 Mo. 540; Ferguson v. Cason, 13 Mo.App. 29; Farrar v. Deale, 21 Mo. 18. (13) The demand in the probate court was founded upon an account stated which was changed in the circuit court to a demand on an itemized account. This was error. Cape Girardeau v. Kimmel, 58 Mo. 83; Ticknor v. Vorhis, 46 Mo. 110. (14) Judge Stampfli being presiding justice of the county court was incompetent as a witness, by reason of the death of Schmidt. Williams v. Edwards, 94 Mo. 447. (15) The county is precluded from recovery by the testimony of Judge Stampfli to the effect that the court did not know to what fund the balance belonged and charged it up to the interest fund because there was plenty of money in that fund.
OPINION
-- Frank Schmidt was elected treasurer of Cole county at the November election in 1882. He qualified and continued to discharge the duties of his office until his death, which occurred in November, 1884.
Jacob Tanner became the successor of Schmidt. Kunigunda Schmidt qualified as the executrix of the deceased treasurer. Cole county filed a claim in the probate court against the Schmidt estate for $ 1,647.74, balance claimed to be due on the county interest fund, which claim was allowed by the probate court, and the executrix appealed. The circuit court, on a trial anew, sustained a demurrer to the evidence and the county sued out this appeal, pending which the executrix died, and the cause has been revived in the name of Dallmeyer, administrator, with the will annexed.
1. For the defendant it is insisted that the probate court had no jurisdiction to allow the demand, and if it be so then it must follow that the circuit court had no jurisdiction of the appeal. The claim is founded on the notion that the statute gives the county court exclusive jurisdiction to hear and determine such demands. Section 5378, Revised Statutes, 1879, makes it the duty of the county treasurer to settle semi-annually with the county court at specified terms of the court, and in case of his death it is made the duty of his executor or administrator to make immediate settlement and deliver to the successor in office all money belonging to the county, "and at each settlement the county court shall immediately proceed to ascertain by actual examination and count the amount of balance of funds in the hands of such treasurer to be accounted for and to what particular fund or funds it appertains, and cause to be spread on its records, in connection with the entry of such settlement, the result of such examination and count."
The county courts of this state have many duties to perform, some of which are judicial, and others are not of that character. The court in making the stated settlements with the treasurer and other officers does not act in a judicial capacity. It acts in the capacity of an auditor of public accounts, or as the financial agent of the county. This matter has been so often considered by this court that it is sufficient to cite the following cases: Marion County v. Phillips, 45 Mo. 75; State to use, etc., v. Roberts, 60 Mo. 402; S. C., 62 Mo. 388; State to use of Bates County v. Smith, 65 Mo. 464.
Section 5379, Revised Statutes, 1879, makes it the duty of collectors, sheriffs, marshals, clerks, constables and other persons chargeable with moneys belonging to any county to settle with the county court at each stated term, there being four of these terms, and to pay into the treasury any balance found due. And section 5380 declar...
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