Putnam County v. Johnson

• Decision Date: 02 June 1914
• Docket Number: No. 16650.,16650.
• Citation: 259 Mo. 73,167 S.W. 1039
• Parties: PUTNAM COUNTY v. JOHNSON.
• Court: Missouri Supreme Court

167 S.W. 1039

259 Mo. 73

PUTNAM COUNTY v. JOHNSON.

No. 16650.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. COUNTIES (§ 89)—OFFICERS—MONEY RECEIVED —RECOVERY BY COUNTY—PLEADING—PETITION.

In an action by a county against a former county clerk, counts alleging that defendant became plaintiff's agent and remained such agent during certain years, during which time he received, as agent for plaintiff, a specified sum which he had failed to pay over on demand, and that during such years he received from plaintiff, as its agent, a certain sum which he had failed to pay over on demand, stated good causes of action for money had and received.

2. LIMITATION OF ACTIONS (§ 33)—LIMITATION APPLICABLE—ACTS BY VIRTUE OF OFFICE.

In an action by a county against a former county clerk, counts in the petition alleging the receipt by him, as agent for plaintiff, of sums which he had failed to pay over on demand, and not state causes of action subject to Rev. St. 1909, § 1890, requiring actions against an officer upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, to be brought within three years, since county officers may be the agents of the county for matters beyond those of the office, and the counts did not proceed on the theory that the money was received in virtue of his office, and hence they were not demurrable, though it appeared that more than three years had elapsed.

3. LIMITATION OF ACTIONS (§ 33)—PLEADING —RAISING BY DEMURRER.

In an action by a county against a former county clerk, counts alleging that defendant wrongfully exacted and obtained from the county $2,009.85, made up of items therein set out, and had only paid back $418.86, leaving unpaid $1,590.99, which he had refused and neglected to pay after being ordered and directed to do so, did not state causes of action for fraudulently receiving the money, so as to render inapplicable the three years' statute of limitations (Rev. St. 1909, § 1890), applying to actions against officers upon liabilities incurred in their official capacity and in virtue of their office, and hence they were demurrable where they showed that more than three years had elapsed.

4. LIMITATION OF ACTIONS (§ 33)—LIMITATION APPLICABLE—ACTIONS "BY VIRTUE OF OFFICE."

Money received by a county clerk in excess of that due him for making out and computing tax books, for salary, for earnings wrongfully reported as having been received from the state and not in accordance with the state report, for school taxes erroneously charged twice and wrongfully exacted and retained, for making financial statements, and for commissioners' orders was received in virtue of his office, within Rev. St. 1909, § 1890, requiring suits against officers for liabilities incurred by the doing of an act in their official capacity, and in virtue of their office, to be brought within three years.

Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.

Action by Putnam County against John D. Johnson. Judgment for defendant on demurrer, and plaintiff appeals. Reversed and remanded.

D. M. Wilson and J. W. Clapp, both of Milan, and E. A. Jarman, of Unionville, for appellant. N. A. Franklin and J. C. McKinley, both of Unionville, for respondent.

GRAVES, J.

The plaintiff, being cast below upon a demurrer to its petition, suffered final judgment to go, and from such judgment has appealed.

The petition, omitting therefrom the items of account in the first count thereof, reads:

"Plaintiff for its third amended petition, leave of court first had and obtained, states: That it is a political subdivision of the state of Missouri, and as such has authority to bring this suit. That, at the general election held in 1898, the defendant was elected county clerk of Putnam county, Mo., for a term of four years, and that on the 1st day of January, 1899, he gave bond, qualified and entered upon the discharge of the duties of his said office, and continued to hold said office until the 1st day of January, 1903. That, at the general election in 1902, the defendant was re-elected to the said office of county clerk of said county for another term of four years, and that on the 1st day of January 1903, he gave bond, qualified and entered upon the discharge of the duties of said office, and continued to hold the same until the 1st day of January, 1907. That during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and while the defendant was county clerk of said county, he wrongfully and without authority of law as such county clerk exacted and obtained from plaintiff the aggregate sum of $2,009.85, said aggregate sum being made up and composed of the following items, and in the manner following, to wit: * * * That when the county court of said Putnam county ascertained that the defendant had wrongfully exacted, charged, obtained, and received from plaintiff the said several items above enumerated, amounting to the aggregate sum of $2,009.85, and had only paid back the sum of $418.86, leaving unpaid and due plaintiff the said sum of $1,590.99, the said court, by its order made on the 5th day of April, 1910, and during the February adjourned term, 1910, of said court, did order and direct the defendant to pay into the treasury of said county the sum of $1,590.99, so found by said county court to be due said county, and that the defendant having failed, refused, and neglected for more than 15 days after the making and delivery to him of a copy of said order to pay said sum of $1,590.99, or any part thereof, into the treasury of said county as required by law, the said county court, by its order entered of record on the 21st day of April, 1910, and during its said February adjourned term, 1910, ordered that an action be brought against the defendant for the said sum of $1,590.99, so found to be due plaintiff, and that the defendant has ever since failed and refused, and still fails and refuses, to pay the said sum of $1,590.99, or any part thereof, into the treasury of said county. Wherefore plaintiff prays judgment against the defendant for said sum of $1,590.99, with interest thereon, and for costs.

"For another and further cause of action, plaintiff says: That it is a political subdivision of the state of Missouri, and as such has authority to bring this suit. That, at the general election held in 1898, the defendant was elected county clerk of Putnam county, Mo., for a term of four years, and that on the 1st day of January, 1899, he gave bond, qualified and entered upon the discharge of the duties of his said office, and continued to hold the same until the 1st day of January, 1903. That, at the general election held in 1902, the defendant was again elected to the same office, and that on the 1st day of January, 1903, he gave bond, qualified and entered upon the discharge of the duties of said office, and continued to hold the same until the 1st day of January, 1907. That during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and while the defendant was county clerk of said Putnam county, he wrongfully and without authority of law exacted, charged, obtained, and received of and from plaintiff $2,009.85, of which amount defendant thereafter and before the bringing of this suit paid back to plaintiff the sum of $418.36, leaving the net amount so wrongfully exacted, charged, obtained, and received of and from the plaintiff by defendant and due plaintiff the sum of $1,590.99. That, when the county court of said Putnam county became possessed of the knowledge that the defendant was so wrongfully retaining the said sum of $1,590.99, the said court, by its order made on the 5th day of April, 1910, and during the February adjourned term, 1910, of said court, did order and direct the defendant to pay into the treasury of said county the said sum of $1,590.99, and that the defendant having failed and refused and neglected for more than 15 days after the making and delivery to him of a copy of said order to pay said sum of $1,590.99, or any part thereof, into the treasury of said county, as required by law, the said court, by its order entered of record on the 21st day of April, 1910, and during its said February adjourned term, 1910, ordered that an action be brought against the defendant for the said sum of $1,590.99, so found to be due plaintiff, and that the defendant has ever since failed and refused, and still fails and refuses, to pay the sum of $1,590.99, or any part thereof, into the treasury of said county. Wherefore plaintiff prays judgment against defendant for the sum of $1,590.99, with interest thereon, and for costs.

"For another and further cause of action plaintiff says: That in the month of January, 1900, the defendant became the agent of the plaintiff, and remained such agent during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and that during said time the defendant received, as agent for plaintiff, the sum of $2,009.85, and of said amount paid back to plaintiff the sum of $418.86, but retained in his possession the sum of $1,590.99, and that, although the plaintiff has often demanded of de...