County v. Bragg

• Citation: 36 S.W. 600,135 Mo. 291
• Parties: Shelby County, Appellant, v. Bragg
• Decision Date: 30 June 1896
• Court: Missouri Supreme Court

36 S.W. 600

135 Mo. 291

Shelby County, Appellant, v. Bragg

Supreme Court of Missouri, Second Division

June 30, 1896

Appeal from Shelby Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

V. L Drain, James T. Lloyd, and Thomas H. Bacon for appellant.

(1) While the action of the county court approving the annual settlements of respondent partook of the nature of judgments (State, etc., v. Hickman, 84 Mo. 74), the approvals were not judgments, and at most they were merely prima facie evidence in respondent's favor. Marion, etc., v Phillips, 45 Mo. 75; Phelps v. Bishop, 46 Mo 68; Reppy v. Jefferson, etc., 47 Mo. 66; State, etc., v. Moeller, 48 Mo. 331; Owens v. Andrew, etc., 49 Mo. 372; State, etc., v. Roberts, 60 Mo. 402; State, etc., v. Roberts, 62 Mo. 388; State, etc., v. Smitte, 65 Mo. 464; Thornton v. Thomas, 65 Mo. 272; Re Burris, 66 Mo. 442; Vogel v. St. Louis, 84 Mo. 432; Cole Co. v. Dallmeyer, 101 Mo. 57; State v. McGonigle, 101 Mo. 353; Sears v. Stone, etc., 105 Mo. 236; Scotland, etc., v. Ewing, 116 Mo. 129; Callaway v. Henderson, 119 Mo. 32, 37. (2) This suit was properly brought for money had and received. Cole Co. v. Dallmeyer, 101 Mo. 57. (3) The county justices were lay judges who were not guilty of laches in relying on affidavits which by special statute (Laws 1874, p. 64, sec. 5), as well as by general law (G. S. 1865, p. 799, sec. 1), were made under the pains and penalties of perjury. On general principles laches is not imputable to county judges. Parks v. State, 7 Mo. 194; Marion, etc., v. Moffett, 15 Mo. 604; Ray, etc., v. Bently, 49 Mo. 236. (4) A construction which would presume discovery of the alleged fraud from the official duty of discovering the same would abrogate the statute which gives ten years for discovery. R. S. 1879, p. 547, sec. 3230. The statute uses not the word "notice" or "knowledge," but the word "discovery." (5) The only fraud alleged is in the last annual settlement, filed January 1, 1883. The suit was begun September 24, 1892, and the proof shows discovery within said 1892. Bent v. Priest, 86 Mo. 475. (6) The respondent collected under a public trust public moneys, which he willfully failed to report. Until such report by him no statute of limitations began to run in his favor. State, etc., v. Minor, 44 Mo. 373; Kirk v. Sportsman, 48 Mo. 382. Law to this extent is good even as to unofficial moneys. Carder v. Primm, 52 Mo.App. 102, and cases therein cited.

R. P. Giles and W. O. L. Jewett for respondent.

(1) This is an action for money had and received, and not for money earned. It is not sufficient for the appellant to show that respondent was entitled to receive or ought to have received money, but it must show that respondent did actually receive money, which he has not paid to the county. (2) The five years' statute of limitations is a good defense to this action. Garrett v. Conklin, 52 Mo.App. 654. Plaintiff's ignorance of its right or cause of action will not affect the running of the statute in the absence of fraud or some improper act of concealment, causing such ignorance. Garrett v. Conklin, 52 Mo.App. 654; Wells v. Halpin, 59 Mo. 92; Rogers v. Brown, 61 Mo. 187; Moore v. Mining Co., 80 Mo. 86; 13 Am. and Eng. Ency. 730. (3) There is no proof of fraud or of any improper act of concealment. Constructive fraud is not sufficient, but there must be actual fraud involving moral turpitude shown by affirmative acts. 13 Am. and Eng. Ency. 729. (4) Under statutes similar to our own the courts have discussed the meaning of the word "discovery" and have held that it means from the discovery of the fraud, or from the time when fraud might with ordinary diligence have been discovered. 13 Am. and Eng. Ency. 730; Boyd v. Blackman, 29 Cal. 19; Fritschler v. Koehler, 83 Ky. 78; Wear v. Skeimer, 46 Md. 257. (5) The receipt of money by a sheriff at a partition sale of land does not constitute him a trustee of a continuing trust, taking such trust out of the statute of limitations. Townsend v. Eichelber, 38 N.E. (Ohio Sup.), 207. See same doctrine in Garrett v. Conklin, 52 Mo.App. 654; Johnson v. Smith's Adm'r, 27 Mo. 591; Shortridge v. Harding, 34 Mo.App. 354; Smith v. Ricords, 52 Mo. 581. (6) The statute runs against a county. St. Charles v. Powell, 22 Mo. 525; School Directors v. George, 50 Mo. 194.

Macfarlane J. Brace, P. J., absent.

OPINION

Macfarlane, J.

This suit is against defendant, as a former clerk of the circuit court and ex-officio recorder of the county to recover an amount alleged to have been received by him in fees in excess of salary and deputy hire. It is charged that defendant held said offices for two terms, or eight years, from January 1, 1875, to January 1, 1883, and during the term collected in fees the sum of $ 16,108.74, which was $ 3,277 in excess of the amount he was entitled to retain, and for which sum he was indebted to the county.

The petition further charged, in order to avoid the operation of the statutes of limitations, that defendant, by his quarterly and annual statements, and settlements made with the county court, falsely and fraudulently concealed from the court the true amount of fees received and that the facts were not discovered until the year 1892, when this suit was at once commenced.

Besides a general denial defendant pleaded in bar of the action both the three and five years statutes of limitation. He also pleaded the settlements in the county court as adjudications of the matter in issue.

On the trial the annual reports of defendant as made to the county court were read in evidence. These were all verified by affidavit. The aggregate of fees earned according to these reports was $ 13,288.61. They show that he retained as salary $ 12,000, and that he paid for clerk's hire $ 1,949.70, making a total credit of $ 13,949.70. The reports were all approved by the courts.

These reports gave no full itemized statement of fees collected. For example, one item of the report made for 1875 was "all costs in criminal and civil cases for 1875 not above provided, $ 405.05." Some of the statements were declared to be correct, while others were only stated to be approximately correct.

In 1892 the county court by an order of record appointed a committee of experts to go through the books of the clerk and recorder for the eight years, and ascertain and report the fees earned by defendant during his whole term. The report of this committee, which purported to be full, made the fees earned in the two offices amount to $ 15,627.94. Each year is reported separately.

On the trial plaintiff offered these reports in evidence, but as we understand from the record they were excluded on objection by defendant.

The experts who had examined the books and made the statements were permitted to testify as to the result of their examination which corresponded with their report, though they did not profess to know that defendant had actually received all the fees earned.

At the conclusion of plaintiff's evidence the court directed a verdict for defendant. Judgment was thereupon entered for defendant and plaintiff appealed.

The record does not disclose the ground upon which the court acted in ordering a verdict for defendant. If therefore it can be sustained upon any one of the defenses pleaded the judgment should be affirmed.

After a careful consideration we are of the opinion that the action, when commenced, was barred by the statutes of limitation and for that reason the judgment should be sustained.

The action is at law for money had and received for the use of the county and does not, therefore, fall into that class of continuing trusts to which the statutes of limitations do not apply until the trust is denied. "The trusts intended by the court of equity not to be reached or affected by the statute of limitations are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity." Kane v. Bloodgood, 7 Johns. Ch. 110. See Johnson v. Smith's Adm'r, 27 Mo. 591.

The rule is that in implied trusts which grow out of the facts and circumstances of each case, the statute commences to run as soon as a party has a right to commence a suit to declare and enforce it. Keeton's Heirs v. Keeton's Adm'r, 20 Mo. 530.

The act of March 30, 1874 (Laws 1874, p. 63), made it the duty of the clerks of circuit courts, who were also ex-officio recorders, to make out a statement verified by their affidavits, giving the amount of each fee received by them in each capacity during the then past year, from whom received and for what services, also the number of assistants and deputies employed, the name of each, the length of time each was employed and the amount paid each, and file the same with the county court at the first session of said court in each year. The county court was required, at such session, to examine such statement; was authorized to examine any person as to the truth of the same, and was required to allow necessary clerk hire and deduct the same from the aggregate amount received. It was then provided that if there should be an amount in the hands of the clerk exceeding the sum he was entitled to retain as salary the same should be paid into the county treasury. Making a false affidavit to such statement was declared to make the party guilty of perjury.

The statute also required clerks of courts of record and all other officers, at the expense of their respective counties, to procure a book in which should be entered a correct account of all fees collected by such officer, the date when collected, in what case and the name of the person entitled thereto.

The last annual statement was made to the county court by defendant at the end...