Howard County v. Moniteau County

• Decision Date: 07 January 1935
• Citation: 78 S.W.2d 96,336 Mo. 295
• Parties: County of Howard v. County of Moniteau et al., Appellants
• Court: Missouri Supreme Court

78 S.W.2d 96

336 Mo. 295

County of Howard v. County of Moniteau et al., Appellants

Supreme Court of Missouri

January 7, 1935

Rehearing Denied January 7, 1935.

Appeal from Moniteau Circuit Court; Hon. Walter S Stillwell, Judge.

Reversed.

Roy L. Kay and J. B. Gallagher for appellants.

The cause of action sued on accrued to respondent more than five years before it made demand or filed suit and was barred by the Statute of Limitations. Sec. 862, Art. 9, Chap. 5, R. S 1929. In 1907 Eugene McQuillin in his Missouri Practice, Vol. 1, page 287, sec. 422, collected the Missouri decisions pertaining to the effect of the Statute of Limitations on trusts and laid down the following two well known and settled propositions of law: "In express technical trust, the statute does not begin to run until the trust is denied by some open act of the trustee." Bent v. Priest, 86 Mo. 488; Smith v. Ricords, 52 Mo. 581; Poe v. Domec, 54 Mo. 119; Ricords v. Watkins, 56 Mo. 553; Bender v. Zimmerman, 80 Mo.App. 144. "In implied trusts, the statute begins to run as soon as the party has a right to commence a suit to declare and enforce the trust." Central Bank v. Thayer, 184 Mo. 61; Callan v. Callan, 175 Mo. 360; Loomis v. Mo. Pac. Railroad Co., 165 Mo. 469; Buren v. Buren, 79 Mo. 538; Keeton v. Keeton, 20 Mo. 530.

Tyre W. Burton and Roy D. Williams for respondent.

(1) This money belongs to Howard County. Gross v. Gentry County, 8 S.W.2d 887. (2) Money paid to a public treasurer is held in trust and the trust is an express trust, and the statute does not run. 37 C. J. 917, sec. 278. (3) Moniteau County was a trustee ex maleficio, and the Statute of Limitations does not run, Case v. Sipes, 217 S.W. 308; Koppel v. Rowland, 4 S.W.2d 818; Elliott v. Machine Co., 236 Mo. 567; Case v. Goodman, 250 Mo. 112; Macon v. Farmers Trust Co., 21 S.W.2d 643; Pike County v. Caldwell, 78 Ill.App. 201.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer upon reassignment.

The sole question for decision is whether the cause of action of respondent, County of Howard, was barred by the five-year Statute of Limitations. The Circuit Court of Moniteau County, before which the case was tried without a jury, ruled against the appellants, County of Moniteau and T. A. Harvey, its treasurer, the defense of the statute, and gave judgment in favor of respondent, County of Howard, in the sum of $ 437. Our jurisdiction of the appeal is fixed by the Constitution, Section 12, Article 6, and Section 5 of the Amendment of 1884 to Article 6. Upon change of venue of a criminal case from Moniteau County to Howard County the defendant who was convicted defaulted upon an appeal bond. The amount of the bond was collected by the Howard County officers and remitted to Moniteau County. The suit was to recover back the money so remitted. The petition recited that respondent's "agent John M. Dougherty, who was then Circuit Clerk of Howard County on the 1st day of May, 1924, through mistake and wrongfully paid to the Treasurer of the County of Moniteau the sum of $ 400," the proceeds of the bond forfeiture; "that said funds to-wit four hundred dollars belonged to and were a part of the school funds of Howard County, Missouri, for which the plaintiff herein was the custodian and trustee of said fund." The petition also alleged that the respondent, Howard County, demanded the sum of appellant, Moniteau County on June 10, 1929, but payment was refused. Suit was filed in the Circuit Court of Moniteau County on November 13, 1930. The bar of the five-year Statute of Limitations was pleaded in the answer. From the date of payment, May 1, 1924, to the date of demand, June 10, 1929, there elapsed five years, one month and eighty-nine days. The interval between the date of payment, May 1, 1924, and the institution of the suit on November 13, 1930, was six years, six months and twelve days. Appellant, Moniteau County, contends that the cause of action accrued at the payment of the money by Howard County on May 1, 1924, and the Statute of Limitations began to run from that date. If this be the law, the action was barred and the judgment should be reversed. Respondent, Howard County, insists that the statute did not begin to run until Howard County, "the proper custodian, knew of the misappropriation or the misapplication," of the money, the date of which knowledge is said to be the time of demand, June 10, 1929. In this view of the law, the judgment should be affirmed.

The defendant in the criminal case, originating in Moniteau County, was found guilty upon trial in the Circuit Court of Howard County, and his punishment was assessed at a fine of $ 100. Upon taking an appeal, he gave an appeal bond in the sum of $ 400, signed by a surety company and one other as sureties. The judgment and sentence of the Howard County Circuit Court, which later was affirmed by the Kansas City Court of Appeals, was in the parts bearing on this appeal, as follows:

"It is therefore ordered by the Court that the State of Missouri for the benefit of the school fund of Moniteau County, Missouri have and recover of and from said defendant the sum of one-hundred dollars, the fine so assessed, together with the costs in this behalf so expended."

Upon the affirmance of the judgment and sentence, the defendant defaulted, and the Prosecuting Attorney of Howard County with commendable diligence caused the appeal bond to be forfeited, judgment to be rendered against the sureties and the amount of this judgment fully collected by execution, all of which proceedings -- forfeiture, judgment and issuance of execution -- were had in the Howard County Circuit Court. There are in the record thirteen letters which passed between the prosecuting attorneys of the two counties with reference to the forfeiture and collection of the appeal bond. This correspondence shows that the two officers had in mind that the proceeds of the bond collection should go into the Moniteau school fund just as the original Howard County sentence provided that the fine should go. When the money collected by the Sheriff of Cole County in satisfaction of the execution reached the Circuit Clerk of Howard County, it was the prosecuting attorney of the latter county who remitted to the Prosecuting Attorney of Moniteau County the check of the Howard County Circuit Clerk for the avails of the judgment. And thus the money passed into the school fund of Moniteau County instead of into the Howard County school fund.

In the case of Gross v. Gentry County and Atchison County, 8 S.W.2d 887, which was an interpleader proceeding brought by the surety upon a forfeited recognizance bond, the Supreme Court en banc held that the judgment of forfeiture should be paid to Gentry County, to which county the criminal cause out of which the forfeiture arose had been transferred on change of venue from Atchison County. The court also held that under Section 8, Article 11, Constitution of Missouri, the proceeds of the forfeiture judgment should go to the school fund of Gentry County despite the provision of Section 2862, Revised Statutes 1899, that such moneys should be for the benefit of the criminal cost fund. It is clear therefore that, in the instant case, the avails of the forfeiture judgment belonged to the school fund of Howard County. It may be noted however, by way of approach to the question of limitation of action, that the opinion of the Court en banc in the Gentry County case, supra, was delivered June 21, 1928; the motion for a rehearing was denied July 3, 1928, and therefore that the...