Newton Burial Park v. Davis

• Decision Date: 24 December 1934
• Docket Number: No. 5444.,No. 5445.,5444.,5445.
• Parties: NEWTON BURIAL PARK v. DAVIS et al. (two cases).
• Court: Missouri Court of Appeals

78 S.W.2d 150

NEWTON BURIAL PARK v. DAVIS et al. (two cases).

No. 5444.

No. 5445.

Springfield Court of Appeals. Missouri.

December 24, 1934.

Rehearing Denied February 5, 1935.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Actions by Newton Burial Park against Amos A. Davis and others. From adverse judgments, defendants appeal.

Reversed.

Hiett, Covert & Lay and D. E. Impey, all of Houston, for appellants.

F. W. Barrett and F. M. McDavid, both of Springfield, for respondent.

SMITH, Judge.

These two suits are upon two official bonds given by Amos A. Davis as clerk of the circuit court of Texas county. The two cases numbered in this court No. 5444, which is a suit on a $5,000 bond, and No. 5445, which is a suit on a $31,000 bond, were by agreement tried together in the circuit court, and by agreement of the parties were briefed and submitted together in this court. We shall dispose of both cases in one opinion here, but shall refer to the $5,000 suit as the first case and to the other as the second case.

There is not much conflict as to the evidence. The trial court, at the request of the defendant, made and filed in said cause a written and signed finding of facts. This finding of facts is hereinafter quoted by us.

The first bond involved in this litigation is for $5,000 and was given in November, 1926, after Amos A. Davis was elected clerk of the circuit court of Texas county. Davis succeeded Hiram Craig as circuit court clerk of that county and took charge of the office on the 3d day of January, 1927. Prior to that date Hiram Craig as circuit court clerk had received and was holding a sum of money to the amount of $25,296.84 which was involved in an interpleader suit. Craig on January 3, 1927, gave Davis a check for this amount of money drawn on the Texas County Bank, and Davis in turn gave Craig a receipt for that amount. After Davis received this check from Craig, Davis had a conversation with the cashier of the Texas County Bank, in which conversation the cashier told Davis the bank could not pay the check. Davis deposited the check in the Bank of Houston for collection and there was some evidence that he authorized the Bank of Houston to take a time certificate of deposit from the Texas County Bank due in fifteen days. The Bank of Houston took the time certificate on the 6th day of January, 1927, due in fifteen days and delivered the same to Davis. The Texas County Bank closed for liquidation on January 14, 1927. On January 19, 1927, the judge of the circuit court of Texas county ordered Amos A. Davis to enter into a new bond in the penal sum of $31,000 with good and sufficient security to be approved by the court, which said bond was executed and approved on February 18, 1927.

The finding of facts of the trial court with reference to these cases is as follows:

"The Defendants requested the Court to make a finding of facts, and the Court finds the facts to be as follows:

"As to the first bond given by Amos A. Davis, as Clerk of the Circuit Court of Texas County, the Court finds the facts to be as follows:

"At the November election, 1926, Amos A. Davis was elected Clerk of the Circuit Court of Texas County; that Davis, in November, 1926, gave a bond to the State of Missouri, as required by law, in the penal sum of Five Thousand Dollars, for the term of his office; that said bond was conditioned as the law required and was duly approved by the Circuit Court of Texas County and duly recorded before Davis entered upon the discharge of his duties as such Clerk; that Hiram Craig was the immediate predecessor of Davis; that Craig's term of office expired and the term of office of Davis commenced on the 3rd day of January, 1927.

"The Court further finds that prior to the expiration of the term of office of Craig, W. J. McGee, by order of the Circuit Court of Texas County, paid Craig the sum of $25,296.84 in an interpleader suit; that Craig deposited said sum paid him as aforesaid in the Texas County Bank; that when Craig quit said office as Circuit Clerk on the 3rd day of January, 1927, and turned the same over to Davis, Craig gave Davis a check drawn on the Texas County Bank in the sum of $25,296.84, the sum deposited as aforesaid by Craig in the Texas County Bank. Davis, in turn, gave Craig his receipt for that amount. The check was never returned to Craig and he was not notified of the nonpayment of the check until the closing of the Texas County Bank.

"The Court further finds that after Davis received the check from Craig, Davis had a conversation with W. J. McGee, the then Cashier of the Texas County Bank, in which conversation the said McGee told Davis the bank could not pay said check; that Davis, after said conversation with McGee, deposited said check in the Bank of Houston for collection and authorized the Bank of Houston to take a time certificate for the same due in fifteen days; that the Bank of Houston took said time certificate made payable to the Bank of Houston; that the Bank of Houston transferred said time certificate to Davis and delivered the same to him.

"The Court further finds that the Craig check was deposited in the Texas County Bank on the 5th day of January, 1927, and that a time certificate of deposit was issued by the said bank to the Bank of Houston on the 6th day of January, 1927.

"The Court further finds the facts to be that the Texas County Bank closed its doors and went into the hands of the State Finance Commissioner for liquidation on the 14th day of January, 1927; that at the time Craig gave the check to Davis the Texas County Bank did not have, over and above the reserve the law required the bank to keep, cash to pay the Craig check in due course, but, disregarding the reserve, there were sufficient funds available at all times to pay said check; that the Texas County Bank, on and after the date of the Craig check until the bank closed its doors, at no time had, over and above the reserve the law required the bank to keep, cash to pay the Craig check.

"The Court further finds that Davis filed the time certificate as a demand against the bank with the State Finance Commissioner and the same was allowed; that all the money Davis received by reason of the Craig check was dividends declared by said Commissioner; that Davis fully accounted to the Plaintiff for all of such dividends.

"The Court further finds that prior to the 18th day of February, 1927, the Circuit Court of Texas County made an order of record finding the penalty in the first bond of Davis to be insufficient in amount, and ordered Davis to give a new bond with a larger penalty named therein, which new bond was given by Davis on the 18th day of February, 1927, and was on that day duly approved by the said Circuit Court and duly recorded as required by law.

"As to the second bond of Davis, in the penal sum of $31,000, the Court finds the facts, in addition to the facts hereinbefore found by the Court relative to the first bond and applicable to the new bond, to be as follows:

"That Davis had given bond as Clerk of the Circuit Court of Texas County and had been for a time discharging the duties of said office, the Circuit Court of said County deemed the penalty named in the first bond of Davis to be insufficient, and the said Court made an order of record requiring Davis to give a new bond in the penal sum of Thirty-one Thousand Dollars; that Davis complied with the order of the Court and gave a new bond in the said sum on the 18th day of February, 1927; that at the time the aforesaid order of the Circuit Court was made and was being liquidated. The new bond recited `This bond is to be effective for all acts occurring on and after date until the first day of January, 1931.'

"The Court further finds that after the new bond was given by Davis, the only money of the Plaintiff coming into the hands of Davis was the money he received as dividends during liquidation of the Texas County Bank, and the Court also finds as a fact that Davis accounted to Plaintiff for all of said money.

                          "C. H. Skinker, Circuit Judge."
                

The trial court rendered judgment on the two bonds against Davis and his sureties. In the first case, the judgment, omitting formal parts, and parts not necessary to set out here, is as follows: "It is therefore considered by the court that the plaintiff recover of and from the defendants, Amos A. Davis, Frank Davis, W. T. Keeney, S. M. Mitchell, S. P. Smith and R. L. Keeney, the sum of Five Thousand Dollars (the penalty of the bond) together with the costs by it in this behalf expended, and it is further ordered and adjudged that the plaintiff have execution for the sum of Three Thousand Dollars, the damage suffered by the plaintiff as aforesaid, together with its costs."

In the second case the pertinent part of the judgment is as follows: "It is therefore considered by the court th...