Kohout v. Adler
| Decision Date | 15 September 1959 |
| Docket Number | No. 30297,30297 |
| Citation | 327 S.W.2d 492 |
| Parties | Joseph B. KOHOUT and Theresa A. Kohout, his wife (Plaintiffs), v. Milton T. ADLER, Norien Piper and Daniel W. Piper, Eleanor Vandas (Defendants), Appellant, Standard Accident Insurance Company, a corporation (New Party Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Edward C. Schneider, Harry A. Frank, St. Louis, for appellant.
J. D. Leritz, J. L. Leritz, St. Louis, for respondent.
JAMES D. CLEMENS, Special Commissioner.
This is an action on a notary public's bond, thwarted by the surety's plea of the 3-year statute of limitations. The issue here is whether the statute began to run its course when the defalcation occurred in 1952 or when it was discovered by the victim in 1958.
The first scene of this legal drama opened with the innocent bystanders, Joseph and Theresa Kohout, bringing suit to set aside a forged deed of trust which clouded the title to their home. The principal defendant (and the villain of the piece) was Daniel Piper, a notary public. The Kohouts say Piper forged their signatures to a series of notes and deed of trust and falsified their acknowledgment thereto. Also made defendants were the named trustees and beneficiary in the deed of trust, and Eleanor Vandas, to whom Piper sold the notes and who now prayerfully holds them. Mrs. Vandas, fearing that she will find herself bilked of some $5,000 paid by her to Piper for the bogus paper, has brought this cross-action against Piper's corporate surety.
The factual background pleaded by Mrs. Vandas in her cross-claim against the surety is this: In 1950, Piper was commissioned a notary public for a four-year term and duly executed a $5,000 bond. Mrs. Vandas had done business with Piper for years and trusted him. In February of 1952 Piper corruptly represented to Mrs. Vandas that he owned the Kohouts' notes and a first deed of trust freshly executed on their property. There was a three-year note for $5,000, and five semi-annual principal notes of $150 each, said Piper. Unknown to all but Piper, these notes and the deed of trust had been forged and the acknowledgment falsified by Piper. Mrs. Vandas was persuaded. She bought the notes from Piper at face value. He handed over the notes, the recorded deed of trust, a proper title certificate and a fire insurance policy. For the next three years, Piper claimed to be collecting the semi-annual notes and interest installments from the Kohouts, and from time to time he duly made such payments to Mrs. Vandas. Then, when the $5,000 note fell due in February of 1955, Piper told Mrs. Vandas the Kohouts wanted to extend the loan. Upon her agreement thereto, Piper presented Mrs. Vandas with a renewal agreement and new semi-annual notes, which also had been forged by Piper. The amounts called for by these new notes were similarly paid by Piper to Mrs. Vandas when due. Piper's whole course of conduct maintained Mrs. Vandas' sense of security until January of 1958 when the newspaper carried a story that Piper had been suspended as a member of a local real estate board. Mrs. Vandas investigated, and the light dawned.
The surety moved to dismiss Mrs. Vandas' cross-petition because of the special statute of limitations pertaining to notaries' bonds, Section 486.050 RSMo 1949, V.A.M.S., which in part provides:
'Said bond, after having been so recorded, shall be filed in the office of the secretary of state, and may be sued on by any person injured; but no suit shall be instituted against any such notary or his sureties more than three years after such cause of action accrued.' (Emphasis ours.)
The section contains no exceptions nor provisions for tolling its application. The trial court ruled that Mrs. Vandas' cause of action accrued at the time of the original defalcation in February of 1952, found that Section 486.050 is a special statute of limitation which could not be tolled by Piper's concealment of the defalcation, and ruled that the cause of action was therefore barred by the statute. The trial court declared that its order of dismissal be deemed a separate, final judgment for the purpose of appeal.
We must point to a distinction between general and special statutes of limitation. The former are found in Chapter 516 RSMo 1949, V.A.M.S. By Sections 516.120 and 516.280 there are provisos tolling, that is, suspending, the application of the general limitations in certain cases where a party has concealed himself or his wrong. But, by Section 516.300, these provisos are declared inapplicable to actions to which some special statute applies. The three-year limit in Section 486.050 is a special statute of limitations, dealing with actions on notaries' bonds. It carries neither exception nor proviso. Hence, it cannot be tolled, or suspended. 'A special statute of limitations must carry its own exceptions and we may not engraft others upon it.' Frazee v. Partney, Mo.Sup., 314 S.W.2d 915, 919; and see State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347, loc. cit. 351.
So the real issue here is not whether Piper's active concealment of his wrong tolled the special statute. It could not be tolled. Instead, the question is whether Mrs. Vandas' cause of action accrued at the time of Piper's defalcation in 1952 or at the time of Mrs. Vandas' discovery thereof in 1958.
In Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 103, 24 A.L.R.2d 611, it is stated as a 'well-established rule' that a cause of action accrues, and limitations thereon begin to run, when the right to sue arises.
This question of the time of accrual of a cause of action was recently discussed by the Supreme Court in the case of Frazee v. Partney, 314 S.W.2d 915, 920. That was an action for wrongful death brought two years after an automobile accident. The wrongful death act provides that actions thereunder '* * * shall be commenced within one year after the cause of action shall accrue * * *.' Section 537.100 RSMo 1949, V.A.M.S. The plaintiffs pleaded that the defendant had criminally left the scene of the accident and concealed his identity and whereabouts until a short time before suit was filed. They contended that their cause of action did not accrue until it became possible for them to sue the defendant. The Supreme Court held that the defendant's unlawful concealment did not extend the beginning of the one-year statute, and ruled that the action accrued at the time of death. The court said: In Unexcelled Chemical Corp. v. United States, 345 U.S. 59, loc. cit. 65, 73 S.Ct. 580, 583, 97 L.Ed. 821, the court said: ...
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