Glaze ex rel. Board of Sup'rs of Harrison County Drainage Dist. v. Shumard

• Decision Date: 03 October 1932
• Citation: 54 S.W.2d 726,227 Mo.App. 434
• Parties: C. E. GLAZE ET AL. EX REL. BOARD OF SUPERVISORS OF HARRISON COUNTY DRAINAGE DISTRICT, APPELLANTS, v. JAMES W. SHUMARD ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

54 S.W.2d 726

227 Mo.App. 434

C. E. GLAZE ET AL. EX REL. BOARD OF SUPERVISORS OF HARRISON COUNTY DRAINAGE DISTRICT, APPELLANTS, v. JAMES W. SHUMARD ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

October 3, 1932

Certiorari denied January 11, 1933.

Appeal from Circuit Court of Harrison County.--Hon. A. G. Knight Judge.

AFFIRMED.

Judgment affirmed.

Randall Wilson for appellants.

George R. Miller, and McKnight & Redman for respondents.

OPINION

TRIMBLE, P. J.

This is a suit, at the relation of the Harrison and Mercer County Drainage District, on the official bond of James W. Shumard Treasurer and Ex-Officio Collector of the delinquent taxes for Harrison County, Missouri, to recover a balance of $ 3,184.88, delinquent taxes due said Drainage District, which said treasurer and ex-officio collector collected, but which was not received in cash by the Secretary and Treasurer of said District for reasons which will hereinafter appear.

A jury was waived and the cause was tried before, and submitted to, the court. Judgment was rendered in favor of defendant and his sureties. Plaintiffs have appealed.

The bond on which suit is brought is dated April 5, 1925, and was given by James W. Shumard as principal, with the other defendants as sureties, in the sum of $ 15,000, to the Board of Supervisors of the Harrison and Mercer County Drainage District, conditioned as follows:

"Whereas, the said James W. Shumard was, on the fourth day of November, 1924, duly elected to the office of treasurer and ex-officio collector of the delinquent taxes in and for the County of Harrison in the State of Missouri, and has been duly commissioned. Now, therefore, if the said James W. Shumard shall pay over and account for to the Harrison and Mercer County Drainage District all money received and collected by him as drainage taxes and coming into his hands as such ex-officio collector, and belonging to said Harrison and Mercer County Drainage District, according to law, then this obligation to be void, otherwise to remain in full force and effect."

The relator Drainage District was organized by the Circuit Court under what is now Article 1, Chapter 64, Revised Statutes Missouri 1929, (Secs. 10743 to 10808, both inclusive.)

At the trial an agreed statement of facts was introduced, establishing the following:

1. That the Drainage District was organized as above stated.

2. That the plaintiffs are members of its Board of Supervisors.

3. That James W. Shumard was, at the general election in November, 1924, elected treasurer and ex-officio collector of Harrison County, Missouri, and, after being duly qualified, discharged his duties as such treasurer and ex-officio collector until the expiration of his term; and at the general election in November, 1928, he was reelected, duly qualified and continued to hold said office to the present time and is now discharging the duties thereof;

4. That, as said treasurer and ex-officio collector, he, with his said sureties, signed, sealed and executed the bond herein sued on;

5. That G. E. Girdner was, at all the times mentioned in the petition, the duly elected, qualified and acting Secretary and Treasurer of the said Harrison and Mercer County Drainage District;

6. That during the month of March, 1927, James W. Shumard collected back taxes belonging to said Drainage District, amounting to $ 10,396.32, and between said date and the date of filing this suit, has paid $ 5,391, and since the filing of this suit has paid $ 1,820.44, (amounting in all to $ 7,211.44), and that of the funds so collected, there remains $ 3,184.88, which it is admitted has been demanded of said defendant Shumard and payment refused.

The answer set up two affirmative defenses:

First, That--

"At the May, 1925, term of the County Court of Harrison County, Missouri, the Bethany Savings Bank of Bethany, Missouri, was duly and regularly selected and designated a county depositary by the said court for Harrison County, Missouri, for all funds coming into the hands of the county treasurer in his official capacity as such treasurer and in his official capacity as ex-officio collector of the revenue for a period of two years and until 65 days after the time designated by law for the selection of another depositary; that the said Bethany Savings Bank duly and regularly qualified as such depositary, and filed a bond as required by law which bond was regularly approved by said county court. That in pursuance of law, and solely by reason of the designation of the said Bethany Savings Bank, Bethany, Missouri, as county depositary, and not by reason of any desire or selection on his part, the defendant, James W. Shumard, deposited the funds sued for and coming into his hands and belonging to the Harrison and Mercer County Drainage District in the said Bethany Savings Bank; that the said James W. Shumard faithfully, and in compliance with the law, kept all of said money on deposit in the said Bethany Savings Bank. That the said Bethany Savings Bank did on the evening of April 19, 1927, and while said funds were so kept on deposit in said bank, and while said bank was the county depositary, by order of the board of directors, ceased to do business, closed its doors, failed and turned its affairs over to the Commissioner of Finance of the State of Missouri for the purpose of liquidation, and that said funds have been lost to the district solely by reason of said failure and through no fault or negligence of these defendants or either of them."

Second, That--

"On April 11, 1927, the defendant, James W. Shumard, drew his check upon the Bethany Savings Bank, payable to G. E. Girdner, treasurer of the Harrison and Mercer County Drainage District, in the sum of $ 10,396.32 and on said date deposited said check in the mail addressed to said G. E. Girdner at Cainsville, Harrison County, Missouri; that the said G. E. Girdner, treasurer, did not properly present said check to the Bethany Savings Bank for payment and unreasonably delayed the presentation of said check to said bank for payment until after it had failed and ceased to do business, and that said fund was lost to the district solely by reason of the negligence of the secretary and treasurer of said district as aforesaid and through no fault or dereliction of duty on the part of the defendant, James W. Shumard; that if the said G. E. Girdner had presented the said check to the said Bethany Savings Bank, upon which it was drawn, within a reasonable time after it was drawn and received by him it would have been paid by the said bank and these funds would not have been lost to the Harrison and Mercer County Drainage District."

To these defenses a demurrer was filed charging that they failed "to state facts sufficient to constitute a defense to the cause of action alleged."

At the same time plaintiffs filed a motion to strike out these defenses--

(1) Because they do not constitute or plead a defense to, or denial of, the cause of action alleged.

(2) Nor do they confess and avoid the cause of action alleged.

(3) Nor do they purport to plead a counterclaim.

The demurrer and motion to strike out were both overruled and thereupon plaintiffs filed a reply denying generally everything except the facts herein above shown to have been admitted.

After hearing the evidence, the trial court rendered a general judgment for defendants, no declarations of law or findings of fact being asked or given. Hence we have no means of knowing whether the court found for defendants on the first or second grounds of defense set up in the answer.

Over the objections of plaintiffs, defendants introduced evidence showing that on May 25, 1925, the County Court of Harrison County, by an order of record, selected the Bethany Savings Bank as county depositary for the county funds of Harrison County, Missouri, for the ensuing two years, and ordered said bank to give bond as such depositary as provided by law, which it did, and said bond was approved and ordered filed, conditioned as follows:

"If the said Bethany Savings Bank shall faithfully perform all the duties and obligations devolving by law upon it as such depositary, and pay upon presentation all checks drawn upon said depositary by the county treasurer of said county, whenever any fund shall be in said depositary belonging to said county, and promptly pay all interest when due, and that all county funds of district school funds and capital school funds shall be faithfully kept by said depositary and accounted for according to law, and if said conditions shall be faithfully kept by said depositary, then this obligation shall be void, otherwise remain in full force and effect."

James W. Shumard, the defendant county treasurer and ex-officio collector of drainage district back taxes, testified that--

During the month of March, 1927, he collected back taxes of said drainage district amounting to $ 10,396.32 and deposited it in the Bethany Savings Bank, which was then county depositary, "because it was the depositary of the county court, and the statutes said I would (should) put it there." This reference to the statute was objected to as being a conclusion and the court received it as being merely the witness's interpretation of the statute; witness stated he had nothing to do, nor made any suggestion, with reference to the bank's selection as a county depositary that as soon as the money was in the Bethany Bank, he wrote a check thereon for $ 10,396.32, payable to G. E. Girdner, secretary-treasurer of Harrison and Mercer County Drainage District, and sent it on Monday, April 11, 1927, through the mail addressed to G. E. Girdner, secretary, etc., at Cainsville, in said Harrison County. In connection with his...