Hickory County v. Fugate

• Decision Date: 23 February 1898
• Citation: 143 Mo. 71,44 S.W. 789
• Parties: HICKORY COUNTY v. FUGATE et al.
• Court: Missouri Supreme Court

44 S.W. 789

143 Mo. 71

HICKORY COUNTY v. FUGATE et al.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

PLEADING — DEMURRER — ACTION ON COUNTY TREASURER'S BOND — PETITION.

1. In determining the sufficiency of a petition, the court cannot look beyond the petition to any exhibits filed therewith in order to supply its defects, or beyond the demurrer for a reason why the demurrer should be sustained.

2. A petition against a county treasurer and his sureties on the bond assigned as breaches that the treasurer refused to make a settlement with the county court (Rev. St. 1889, § 3175), and further refused on an order of court either to pay the balance of certain funds in his hands to the legally selected depository of the county (Acts 1891, p. 104, § 3216), or to turn them over to his successor. Refusal to pay over sums collected from various specific sources were alleged in separate counts as other breaches of the bond. Held, that the petition stated a single cause of action on the treasurer's bond, though it assigned distinct breaches of the conditions thereof.

3. Where it is the duty of a county treasurer to deposit moneys collected with the depository designated by the county court, and to turn the same over to his successor, a petition against him for the breach of his bond by failure so to do need not allege that a warrant was drawn authorizing him to make said deposits or transfer.

4. The authority of attorneys to bring an action on a county treasurer's bond in behalf of the county need not affirmatively appear on the face of the petition.

5. The statement of evidential matter in a petition against a county treasurer for breaches of his bond, where the breaches assigned are specific, is not ground of demurrer.

Appeal from circuit court, Hickory county; Argus Cox, Judge.

Action by Hickory County against R. N. Fugate and others. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Reversed.

W. A. Dollarhide, Rechow & Pufahl, and J. H. Childers, for appellant. Upton & Skinker, W. D. Harryman, and Chas. Kroff, for respondents.

BRACE, P. J.

This is an appeal from a judgment of the circuit court of Hickory county sustaining a demurrer to the petition in an action by the plaintiff against the defendant R. N. Fugate, and his sureties on the bond of said Fugate, given as treasurer of said county, conditioned in the penal sum of $20,000, that the said Fugate "shall faithfully perform the duties of said office according to law." The amended petition to which the demurrer was sustained, after alleging the election of said Fugate on the 6th of November, 1894, his qualification as treasurer, and the execution and delivery of said bond on the 14th of November, 1894, assigned the following breaches of the condition thereof: "(1) Plaintiff states that the said Richard N. Fugate has failed to faithfully perform his duties as such treasurer, and has been guilty of the following breaches of said bond or writing obligatory, to wit: That he has failed and refused to make settlement as such treasurer with the county court of said Hickory county, Mo., as required by law, though often requested and ordered so to do by the said county court of Hickory county, Mo.; and that thereupon the said county court, after due citation and notice to the said Richard N. Fugate, to make settlement, in pursuance of the powers in it vested, made such settlement from the best information obtainable, and thereupon ascertained and found the several amounts due by him as hereinafter stated, and as will more fully appear from a copy of such settlement so made by the said county court, and filed herewith and made a part hereof, and ordered the several sums so found due to the several fund paid over to the Hermitage Bank, of Hermitage, Hickory county, Mo., the duly and legally selected depository of Hickory county, Mo., which he has failed, neglected, and refused to do. (2) Plaintiff, for another and further breach of said bond or writing obligatory, states that the defendant Richard N. Fugate has, as such treasurer, during his term of office, collected and received the sum of one hundred and fifty-seven and 51/100 dollars, witness fees, so found due as aforesaid, which said sum he has failed and refused to pay over, as required by law, to the Hermitage Bank, of Hermitage, Hickory county, Mo., the legally selected depository of said Hickory county, Mo., though often requested and ordered so to do by the county court of said Hickory county, Mo.; and that he has failed, neglected, and refused to pay the same over to J. W. Montgomery, his successor in office, though directed and ordered so to do by the county court of Hickory county, Mo. (3) Plaintiff, for another and further breach of said bond or writing obligatory, states that the defendant Richard N. Fugate, as such treasurer, during his term of office, collected the sum of one hundred and forty-eight and 72/100 dollars, belonging to the county road and canal fund of said Hickory county, Mo.; and that he has failed and refused to pay the same over, as required by law, to the Hermitage Bank, of Hermitage, Hickory county, Mo., the legally designated depository of said Hickory county, Mo., though often requested and ordered so to do by the county court of Hickory county, Mo.; and he has also failed, neglected, and refused to pay the same over to J. W. Montgomery, his successor in office, though often requested and ordered so to do by the county court of said Hickory county, Mo. (4) Plaintiff, for another and further breach of said bond or writing obligatory, states that the defendant Richard N. Fugate, as such treasurer, during his term of office, collected the sum of eighteen hundred and seventy-four and 37/100 dollars...