Nolley v. Callaway Cnty. Court

• Decision Date: 31 July 1848
• Citation: 11 Mo. 447
• Parties: NOLLEY ET AL. v. CALLAWAY COUNTY COURT.
• Court: Missouri Supreme Court

11 Mo. 447

NOLLEY ET AL.

v.CALLAWAY COUNTY COURT.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM CALLAWAY CIRCUIT COURT.

ANSELL & KIRTLEY, for Appellants.

1st. The testimony offered of Nolley's embarrassed and broken condition in 1839-40-41, and up to the execution of the bond sued on, was legal, competent and pregnant proof to establish the main issue in the cause that the defaults of Nolley, if any, were committed anterior, and not subsequent to the bond. There is ample proof given to show a prior commingling of the public and private funds by Nolley; at least, the jury had sufficient to warrant them in so finding--that being so--his being frequently dunned--his inability to pay small demands so repeatedly made on him, both for public and private funds--his continual efforts to borrow, were the usual and ordinary fruits and evidence of an exhausted treasury. See 8 Mo. R. Todd et al. v. Boone County, 431; 1 Starkie 56, 57. 2nd. The reasons stated by Nolley for failing to pay out school funds when warrants were presented, were a part of the res gestae not obnoxious to the principle that a party shall not make evidence for himself, and ought to have been given in evidence, as a statement accompanying the official act. 1 Starkie, 63; 9 Mo. R. 623-4, Gamble v. Johnson; 1 Greenl. 123-4-5-6, §§ 108, 109, 110. 3rd. The statement offered by Daniel Tucker, as collector of the revenue of 1839-40, that he would deliver to Nolley the receipts that should have been given to the tax payers, for which Nolley would receipt to witness as money paid in the treasury, was legal evidence conducing to prove the commingling of the public and private funds as early as 1839-40; and also that the funds purporting to be in the treasury, as evidenced by Nolley's receipts, were not in fact there. 8 Mo. R. 431, Todd et al. v. Boone County. 4th. The first instruction was not the law, and should have been overruled. 5th. The second and third instructions of plaintiff's ought not to have been given. The settlements on their face were irregular, and not according to the provisions of the statutes regulating the Treasury, and so much so, that the jury were not bound to give them the faith and credit due prima facie evidence that stands unrebutted. 1 Starkie, 479, side-paging, 7th Am. ed.; 6th Am. ed. 479. 6th. Plaintiff's fifth instruction ought not to have been given under the operations of the order of the County Court of the 8th of March, 1838, placing the school funds entirely under the disposal of Nolley. 7 Johns. 332, People v. Janson; 1 Howard 257, United States v. Eckford's Ex'rs; 8 Mo. R. 396, Draffen v. Boonville; United States v. Farren & Brown, 5 Peters, 389. 7th. Under the order of the 8th March, 1838, and the manner in which the County Court transacted the business with the treasurer, the neglect and failure of Nolley to pay warrants drawn on him, was some evidence that the funds not applicable to such warrants were not in the treasury; and the sixth instruction should have been refused. 8th. The order of the 8th of March, 1838, was in effect and operation, and in all its consequences, a loan of the school funds to Nolley, so treated and construed by the County Court and Nolley, as evidenced by the whole course of settlements from 1838 to the last settlement in October of 1842; and therefore the plaintiff's 7th instruction ought to have been refused. Theobald's Principal and Security, 43, 83, 84, 85, 90, 91, 92; United States v. Patterson, 7 Cranch, 572; Miller v. Stewart, 7 Wheat. 680; United States v. Kirkpatrick, 5 Cowen, 733; 3 Saund. 412. 9th. The plaintiff's eight instruction ought not to have been given under the operation of the order above mentioned. The County Court made their settlements with Nolley after the manner of their own prescribing, and Nolley's securities cannot be held responsible for its irregularity. Authorities as above. 10th. The impropriety of plaintiff's ninth instruction results from the principles above insisted on. 11th. The plaintiff's tenth instruction is a restatement of the second instruction; and the twelfth instruction is similar to the fifth. 12th. The defendant's eighth instruction was well asked, applied well to the case, and is well sustained by authority. 1 Howard, 262, United States v. Eckford's Ex'rs. 13th. Defendant's thirteenth instruction refused by the Circuit Court, we insist was clear law, applicable to the case, and sustained by these authorities. 14th. The defendant's fourteenth instruction is warranted by all the proof in the cause, and sustained by the following authorities; 9 Wheat. 680, Miller v. Stewart; 9 Wheat. 729, United States v. Kirkpatrick. 15th. Defendant's fifteenth instruction is in strict accordance with the provisions of the statute regulating the Treasury, and ought to have been given. Stat. Mo. 1838-9, pp. 118-122, §§ 48, 8; Stat. 1835, p. 564, § 11. 16th. The defendant's twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth instructions, containing the correct law, are applicable to the case, and ought each of them to have been given to the jury. Stat. 1835, pp. 562-3-4-5, §§ 2, 3, 8, 9, 10, 11, 12, 13, 16; Stat. 1838-9, pp. 118-19-20-21-22, §§ 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 25, 30, 38, 39, 48. 17th. And finally, we insist. that the Circuit Court committed error in overruling defendant's motion for a new trial.

LEONARD, for Appellee.

1. That the settlements with the County Court are conclusive against Nolley and his securities, and both he and they are estopped from denying their truth. Baker, Treasurer of the Commonwealth, v. Preston and others, 1 Virginia R. 235; 1 Greenl. Ev. §§ 27, 207; Devoll v. Leadbetter, 4 Pick. 220. 2. Nolley's insolvency and inability to pay his debts when applied to for that purpose, is no evidence that there was no money in the treasury, and all the evidence of his pecuniary embarrassments, and of his borrowing small sums to pay debts, offered on the ground that if the public money had been in his hands as treasurer, he would have applied it to his private debts, was properly excluded. 3. Nolley's declarations that there was no money in the treasury, given to those who presented warrants for payment as the reason for not paying, is no evidence in his favor of the fact which he states. 4. The evidence offered through the witness Tucker, of the manner in which Nolley received the county revenue in 1839 and 1840, was wholly irrelevant to the case, as well as all of the balance now claimed on account of the county revenue went into the county treasury subsequent to the settlement of November, 1841. 5. The court properly instructed the jury on the part of the plaintiff. 6. The defendant's refused instructions were properly rejected. These instructions, even if correct and unobjectionable as abstract propositions, were irrelevant to the issue, and as their admission ought not to have influenced the jury in their decision of the issue presented to them, so their exclusion did not prejudice the defendants. The plaintiff put her right of recovery on the ground that the money she sought to recover was in the treasurer's hands during his last official term; and the court directed the jury that if the money were there, the plaintiff was entitled to recover, but if it were not there, they must find for the defendants.

NAPTON, J.

This was a suit on the official bond of Daniel Nolley and his securities, as treasurer of Callaway county for an alleged default. The plea of the defendants was non est factum, and under this it was agreed that the plaintiff might give in evidence any matter showing a right of recovery on the bond, and the defendants any matter constituting a legal defense. The plaintiff obtained a verdict for $7,167 46, which the court refused to set aside, and the defendants appealed.

On the trial, the plaintiff gave the following evidence: 1. The appointment and official bond of Nolley as treasurer, of the 24th February, 1842--his resignation on the 26th October, 1842, and the appointment of Henderson as his successor on the 2nd December, 1842.

2. Nolley's official settlements of the 28th October, 1842, showing first, the following balances due the several townships, on account of the school fund:

T. 47, R. 8,

$252 83

T. 49, R. 9,

000 00

T. 48, R. 7,

371 63

T. 47, R. 7,

334 52

T. 49, R. 10,

344 21

T. 45, R. 11,

000 00

T. 45, R. 9,

55

T. 46, R. 9,

284 54

T. 44, R. 11,

613 71

T. 46, R. 11,

6 37

T. 48, R. 8,

238 54

T. 47, R. 10,

109 74

T. 48, R. 10,

7 22

T. 46, R. 10,

499 28

T. 48, R. 9,

646 67

T. 44, R. 10,

379 85

T. 47, R. 9,

1,228 04

Balance due School fund,

$5,319 70

Balance due County Revenue,

321 82

Balance due Road and Canal fund,

72 04

$5,713 56

Interest to 1st March, 1847--4 years 3 months,

1,556 56

$7,270 12

Second, a balance due the Road and Canal fund of

341 90

3. Nolley's official settlement of 21st December, 1842, in relation to the county revenue, showing a balance due that fund of $201 82. The plaintiff also proved that on the 25th August, 1842. Thomas Ritchie paid into the county treasury $120 00, on account of county revenue, which was not charged against Nolley in his settlement of December, 1842. That Nolley was applied to by his successor for the books and papers of the office, and that he delivered over the treasury books, but no money or evidences of debt. That afterwards in February, 1842, Nolley's successor received from him a warrant previously drawn on the road and canal fund for $268 86, and credited it against the balance due that fund, leaving a balance still due that fund of $72 04.

The defendants then gave in evidence--1. Nolley's annual settlements as county treasurer from the 22nd May, 1833, to the 15th March, 1841, both inclusive, with the several official bonds given on these occasions. 2. His quarterly settlements in relation to the county revenue from the 21st August, 1833, to the 1st April, 1842, both inclusive. The settlement of the 25th November, 1841, showed that the treasurer was then in advance...