Platte Cnty. v. Marshall

• Decision Date: 31 January 1847
• Citation: 10 Mo. 345
• Parties: PLATTE COUNTY v. MARSHALL, GREENE & BURNS.
• Court: Missouri Supreme Court

10 Mo. 345

PLATTE COUNTY

v.MARSHALL, GREENE & BURNS.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO PLATTE CIRCUIT COURT.

HAYDEN, for Plaintiff.

HICKMAN, for Defendants.

SCOTT, J.

This was an action of debt brought against Fred. Marshall and his sureties on his bond as county treasurer for Platte county. The breach alleged was the non payment of a county warrant, duly presented, when there were moneys in the treasury applicable to its payment. The pleas were non est factum, with notice of special matter, nil debet, and a special plea, denying that there was any money in the treasury subject to the payment of the warrant. This plea concluded with a verification. The second plea was ruled out on demurrer, and a special demurrer to the third plea was overruled.

On the trial the plaintiff offered to read in evidence an order of the County Court of Platte county, made on the 2nd July, 1844, allowing J. H. Johnson for his services as clerk of the County Court the sum of $78, and directing a warrant on the county treasurer to issue therefor, which was rejected by the court on the ground that the record for the day on which said record was made was not signed by the president of the court.

The plaintiff then offered to read to the jury the warrant issued in pursuance of the above order, and the indorsement thereon made by Marshall, the treasurer, when it was presented, stating that there was no money in the treasury, and bearing date 2nd of July, 1844. This evidence was also excluded on the ground above stated.

The plaintiff then offered to read from the records of the County Court, a settlement made by the court with Marshall as treasurer during the same term on the 3rd of July, 1844, showing a balance in the treasury of $178 of the fund on which the warrant was drawn, and that for more than a month previous thereto none of that fund had been paid out. This was also ruled out. The plaintiff thereupon took a non-suit, and has brought the case here.

In support of the judgment it is contended that the record of the order allowing the account, and directing a warrant to issue therefor, was properly excluded; that the warrant was admitted by the state of the pleadings, and that the settlement made with the treasurer on the 3rd July, showing at that time $178 in his hands subject to the warrant, was no evidence that there was money in the treasury on the day preceding.

With regard to the first point it may be remarked, that our statute does not require the records to be signed by the judge. It enacts that full entries of the orders and proceedings of all courts of record of each day shall be read in open court on the morning of the succeeding day, except on the last day of the term, when the minutes shall be read and signed by the...