Judson v. Smith

• Decision Date: 23 March 1891
• Citation: 15 S.W. 956,104 Mo. 61
• Parties: JUDSON et al. v. SMITH et al.
• Court: Missouri Supreme Court

15 S.W. 956

104 Mo. 61

JUDSON et al. v. SMITH et al.

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

COUNTY COLLECTOR — FAILURE TO PAY OVER TAXES COLLECTED — SUMMARY PROCEEDINGS.

Rev. St. Mo. 1879, §§ 6780, 6781, provide that the county collector shall, on the 5th day of each month, file with the county clerk a statement of all taxes collected during the preceding month, and shall, on or before the 15th day of the month, pay the same into the state and county treasuries, and that, if he fails so to do, the state auditor shall, within 30 days, issue a distress warrant for such taxes and penalties. Section 7566 provides that, immediately after his settlement with the county clerk on the first Monday of March, the collector shall exhibit his accounts and vouchers to the state auditor, who shall without delay adjust the same. Section 7568 provides that, if the collector shall fail to pay the amount so found due into the treasury within 30 days, the auditor shall immediately issue a warrant of distress against the collector and his sureties. A collector was not required to make the monthly settlements, and 18 months after he had retired from office, and made his final settlement with the county court, the state auditor issued a distress warrant for a balance found due for taxes collected during the two years he had held office. The warrant was levied on lands of the sureties. Held that, in the summary proceeding by distress, the statute must be strictly pursued, and that, by reason of the neglect to require monthly settlements and the delay in issuing the warrant, the auditor was without authority to proceed in that manner, and that further proceedings under the warrant should be enjoined.

Appeal from circuit court, Dent county; C. C. BLAND, Judge.

At the November election, 1884, John R. Reddick was elected collector of the revenue of Dent county, Mo., and gave bond as such collector, and with the plaintiffs as sureties on said bond. His term of office expired March 7, 1887, at which time he was succeeded in office by one J. C. Welch, and he turned over to said Welch all the books of said office, and never made any collections after said date. On the 10th of September, 1888, 18 months after the expiration of Reddick's term of office, John Walker, state auditor, issued a distress warrant against said Reddick, and the plaintiffs as his sureties, for the sum of $3,132.21, together with a penalty of 2½ per cent. per month on said sum, from the 7th day of March, 1887, amounting, at the date of the warrant, to the sum of $1,500. The warrant was as follows: "State of Missouri — ss.: The state of Missouri to the sheriff of the county of Dent, greeting: Whereas, John R. Reddick, the collector of the revenue of the county of Dent, aforesaid, for the years of our Lord eighteen hundred and eighty-five and six, hath failed and neglected to pay into the state treasury the full amount with which he stands charged on the books of the state auditor of the state of Missouri, and which he ought to have paid into the state treasury aforesaid, on or before the seventh day of March, in the year of our Lord eighteen hundred and eighty-seven; and whereas, the auditor of the state of Missouri has ascertained the balance due the state of Missouri by said John R. Reddick to be the sum of three thousand one hundred and thirty-two dollars and twenty-one cents, and the said auditor has, according to law, charged the said John R. Reddick, as aforesaid, with the further sum of two and a half per centum a month on said ascertained balance, as aforesaid, to be computed on said balance from the said seventh day of March, eighteen hundred and eighty-seven, until the same shall be paid or collected: These are therefore to command you, in accordance with the provisions of this article, to levy and collect the sum of three thousand one hundred and thirty-two dollars and twenty-one cents, the balance as aforesaid, ascertained to be due, and the said two and a half per centum a month from the seventh day of March, eighteen hundred and eighty-seven, aforesaid, of the goods and chattels and real estate of the said John R. Reddick, and for want of sufficient goods and chattels and real estate to satisfy the aforesaid balance, together with the said per centum thereon, and the fees to the officer collecting the same, you are hereby commanded to levy the same upon the goods and chattels and real estate of James A. Headrick, John E. Organ, L. Judson, J. N. McNurtrey, G. S. Dreckworth, A. H. Clark, and H. B. Clark, the securities of the said John R. Reddick. You are also commanded that, after you have made such levy and collection, you pay the same into the state treasury within thirty days after its transaction, unless the first Monday of March next following the date of this warrant shall intervene, and, in that event, then on or before that day, and return this warrant to the office of the state auditor, and certify thereon how you have executed the same. In testimony whereof I, John Walker, state auditor of state of Missouri, have hereunto set my hand and affixed the seal of the auditor's office, in the city of Jefferson, this tenth day of September, in the year of our Lord eighteen hundred and eighty-eight. [Seal.] JOHN WALKER, State Auditor. Rec'd Dec.1, 1888. J. L. SMITH, Sheriff of Dent Co., Mo."

This warrant was placed in the hands of the sheriff of Dent county on the 11th day of September, 1888, but nothing was done with it until the 19th day of February, 1889, when the real estate of these plaintiffs described in the petition, and of the value of $6,000, was levied on by the sheriff, and was advertised for sale at the April term of the circuit court of Dent county. Mo. On the 4th day of April, 1889, plaintiffs presented their petition to the circuit court, praying for an injunction against the said sheriff, enjoining him from enforcing said warrant against them, and selling said real estate thereunder. A temporary injunction was granted, and the cause continued until the October term, 1889, when, upon trial, the injunction was made perpetual, and the sheriff forever restrained from selling the real estate of plaintiffs levied upon under said warrant. The petition stated substantially the following facts: That Reddick was elected collector of the revenue of Dent county, Mo., at the November election, 1884; that his term of office expired on the 7th day of March, 1887, at which time he was succeeded in office by J. C. Welch, to whom, at said last-mentioned day, he delivered all the books and papers pertaining to said office, and since which time he has not, in any way, discharged any of the duties of said office; that the tax-books for the year 1886 were put into his hands for collection, and he made settlement thereon with the county court of Dent county on May 4, 1887, from which it appeared that he collected the sum of $5,824 of state taxes; that nine-tenths of the taxes for said year were collected by said Reddick before the 1st day of January, 1887, and one-tenth thereof between the 1st day of January, 1887, and the 1st day of March, 1887, after which last-mentioned time he did not collect any money whatever; that no distress warrant had ever been issued by the state auditor to enforce the payment of the money collected by the said collector, and no other steps taken to collect the same until the 10th day of September, 1888. The petition then recites the issue of the distress warrant on September 10, 1888, by the state auditor against the said collector and these plaintiffs for the sum aforesaid; its delivery to the sheriff, J. L. Smith; and that under said warrant the said sheriff had, on the 19th day of February, 1889, levied on the real estate of plaintiffs, (describing it and giving its value,) had advertised it for sale on April 4, 1889, at April term of the circuit court, and would sell the same to satisfy the demands of said distress warrant, unless restrained therefrom by the court; that a sale of said lands so levied on by the sheriff under said warrant would cast a cloud on the title of plaintiffs therein, and injure plaintiffs, and would be a legal wrong, for which no adequate remedy could be had in damages; that the said distress warrant should not be enforced against these plaintiffs for various reasons therein stated, among which were the following: That no due process of law had been had against them in fixing the amount of Reddick's indebtedness to the state, or as preliminary to the issuing of said distress warrant, and no opportunity had been given them, by notice, summons, or otherwise, to answer to or defend against said claim; that the settlement made by said collector with the county court was erroneous, and he had not collected the amount charged to him therein. No proceedings, as required by law, were ever taken to enforce the amount due from said collector by distress warrant in due and proper time. No notice of any kind was given to these plaintiffs of any indebtedness to the state until the 10th day of September, 1888, and they had no notice of any deficit upon such collections until said last-mentioned time. The county court of Dent county, Mo., unlawfully and improperly extended the time of the final settlement of the said collector from the first Monday in March until the first Monday in May, 1887. The state auditor acted without authority of law in issuing the distress warrant at the time and in the manner issued, as well as for the amount of the same. That a large portion, to-wit, the sum of $5,000, collected by said collector upon the tax of 1886, had been paid to the state. It was further stated in...