Montgomery County v. Auchley

• Decision Date: 24 February 1891
• Citation: 15 S.W. 626
• Parties: MONTGOMERY COUNTY v. AUCHLEY.
• Court: Missouri Supreme Court

15 S.W. 626

MONTGOMERY COUNTY v. AUCHLEY.

Supreme Court of Missouri, Division No. 2.

February 24, 1891.

SCHOOL FUNDS — LOANS — SURETIES — DISCHARGE.

1. The objection that a nunc pro tunc entry was made without any written memorandum of the order authorizing it is not available, if not made at the time of the motion for the entry, of which motion the objector had due notice.

2. A person who signs as surety, after delivery, a bond under seal given to secure a loan of school moneys, cannot escape liability by showing that no order requiring additional security was entered of record, without also showing that there was no other consideration, as the seal imports a consideration.

3. A bond, with sureties, given to secure the loan of school moneys, contained a stipulation for further security, which the county court had by law power to order when it deemed necessary for the better preservation of the fund, it being required once each year, at a stated time, to ascertain the condition of each loan. Held, that the fact that one who signed the bond after delivery permitted it to remain with the county court without objection for six years, would estop him from setting up want of consideration in an action thereon.

4. Under Rev. St. Mo. §§ 7103-7110, authorizing the county to invest and manage school funds, and loan them on specified security, such court cannot delegate the power to make loans, or to compromise those already made, without requiring the final approval by the court of the security.

5. Nor has it any power to discharge a surety from his liability on a bond given for the loan of school money upon his delivering "in payment" his note, with personal security, as that is in effect a reloan, and Rev. St. Mo. § 7110, requires that all loans of school funds shall be secured by mortgage.

Appeal from circuit court, Montgomery county; E. M. HUGHES, Judge.

Emile Rosenberger, for appellant. John M. Barker, Sol. Hughlett, and John M. Wood, for respondent.

THOMAS, J.

This action was commenced In 1883, on a school bond for $330, against Francis Auchley, Martin Hildebrand, and Gustave Bachman. Hildebrand was not served, and the writ was dismissed as to him. Bachman did not answer, and judgment by default was rendered against him. Auchley died in 1886, and his executor was made defendant, and he alone prosecutes this appeal. It appears from the record that Martin Hildebrand borrowed $330 belonging to the school funds of Montgomery county, and on the 25th day of November, 1868, executed his bond for the same, with Gustave Bachman and Christian Gliser as sureties. This bond was in the form required by section 68, p. 270, Gen. St. 1865, and was secured by mortgage of Hildebrand's real estate. On the 28th day of February, 1887, Francis Auchley signed the bond as a surety. The land included in the mortgage was sold in 1883 for $50. Defendant Auchley set up and relied upon two distinct defenses: (1) That having signed the note after it was delivered to the county, there was no sufficient consideration to bind him; and (2) that in 1883 the county court of Montgomery county authorized J. M. Barker, the prosecuting attorney of the county, to collect this bond, and "to effect such compromise as he may consider best in the premises," and that in pursuance of this authority Barker took a note for $100 signed by Gliser, one of the sureties on the original bond, with James R. Hance and Mitchell Klingelhoefer as sureties, and then gave said Gliser a receipt as follows: "Danville, Mo., May 10th, 1883. Received of Christian Gliser a note for one hundred dollars, signed by him, James R. Hance and Mitchell Klingelhoefer, dated May the 9th, 1883, and due in 6 months, 8 per cent. interest, in full payment of his part of the bond for $330 given to Montgomery county, Missouri, for the use of school fund T. 49, R. 5, dated November 28th, 1868; and the said Christian Gliser is guarantied against any further payment on said bond to said county or to Francis Auchley, his co-security, or to any other person. [Signed] MONTGOMERY COUNTY, MO. By JOHN M. BARKER, Prosecuting Attorney." Defendant claimed that this receipt relieved him wholly from liability on the bond, and, if not wholly, at least to the extent of this note for $100, which ought to have been credited on the bond the day of its date. The case was tried by the court, and judgment was rendered against Auchley's executor for the whole amount of the bond.

The evidence shows that on the 7th day of February, 1884, the county court of said county made a nunc pro tunc entry, on motion of the prosecuting attorney, as follows: "Now comes plaintiff, praying for an order," etc.; "also files notice to defendants who make default; and, motion being heard, the court finds from the evidence that the facts set out in plaintiff's motion are true; that an order was made on the 11th of August, 1876, by the county court, which order was substantially in the following form and effect, and which order is now ordered to be entered on the records of the court nunc pro tunc, viz.: In matter of the loan made November 25, 1868, to Martin Hildebrand, of $330 belonging to T. 49, R. 5, of said county. The court now deeming it necessary for the better preservation of the said fund so loaned to said Hildebrand, he, the said Martin Hildebrand, is hereby ordered and required to give additional security on his bond for said loan, and that notice of this order be served on said Hildebrand. In the matter of the loan of $330 school money to Martin Hildebrand on the 25th day of November, 1868, and the taking of additional security on the bond therefor on the 28th of February, 1877. It appearing to the court that J. M. Barker, excounty clerk, on February 28, 1877, acting for the public interest, and at the request of M. Hildebrand and Francis Auchley, on said day, in vacation of the court, at his office, took and accepted said Francis Auchley as an additional maker and security on said bond, and the said Auchley then accepted and signed said bond to the county as maker and security therein, it is therefore ordered and adjudged by the court that the said action of said county clerk be approved to all intents and purposes, the same as though said active control and execution of said bond were all done by this court." Both parties introduced evidence, one to show that this entry ought, and the other that it ought not, to have been made. The evidence showed, further, that Prosecuting Attorney Barker took the note of Gliser, and gave the receipt as alleged by Auchley. It further appeared that Hildebrand was Auchley's father-in-law. Auchley often paid the interest on this bond after 1877, Hildebrand sending him the money up to 1883. The Gliser note for $100 was not paid, there being evidence tending to prove that Gliser was insolvent. The court gave no instructions. The defendant, however, asked the court, in substance, to declare the law to be (1) that Auchley was not liable if he did not sign the bond in pursuance of an order of the county court requiring additional security; (2) the order nunc pro tunc, February 7, 1884, was void, because there was no sufficient written memoranda of the previous order to authorize it; (3) that Auchley was released from liability on the bond by reason of the release of Gliser; and (4) that in no event could Auchley be held for more than one-half of the bond on account of the release of Gliser, — which the court refused to do, and the executor duly excepted.

1. The first question presented by the record is, was there any consideration to support Auchley's promise to pay the debt? It seems to be conceded by both parties that, if the county court made an order August 11, 1876, requiring Hildebrand to give additional security for the loan, and in pursuance thereof Auchley signed the bond, the consideration was sufficient to make him liable. Indeed, this point was settled by this court in this same case, when here on a former appeal. 92 Mo. 126, 4 S. W. Rep. 425. This being conceded, let us inquire whether the order requiring the additional security was in fact made. The only evidence of this we have is the nunc pro tunc entry of February 7, 1884. The defendant attempted to attack this entry upon the ground that the county court was not authorized to enter it upon the evidence before it at that time. This court has frequently held that a nunc pro tunc entry cannot be made, unless there be some written memorandum of the order authorizing it. Belkin v. Rhodes, 76 Mo. 643, and cases cited. And it is insisted that the county court in this case had no such memorandum. This point would have been well taken if it had been urged before the county court, at the time it was asked to make and did make the entry, but we think it comes too late now. The evidence shows that Auchley had 10 days' notice that the motion for the nunc pro tunc entry would be made on February 7, 1884. That was after this suit was instituted, and Auchley was then living. He had "his day in court" to resist the making of this entry, and to take his appeal or seek some other remedy, if he was defeated. This he did not do, and we cannot now, in this collateral proceeding, hear the evidence and entertain the objections that ought to have been tendered and interposed when the court made the entry. The judgment of a court of record, entered after notice to the party to be affected, imports absolute verity, and we can see no more reason for allowing a party to show that a judgment entering an order nunc pro tunc ought not to have been made, than to allow any other judgment to be attacked collaterally on the ground that it ought not to have been made. Auchley having had notice that this order would be applied for, and having taken no steps to defeat it, he is now concluded by it. State v. Koontz, 83 Mo. 323, and cases cited; Camden v. Plain, 91 Mo. 117, 4 S. W. Rep. 86.

But again, the bond in question, being under seal, imports a...