Shelby County v. Bragg

• Decision Date: 30 June 1896
• Citation: 36 S.W. 600,135 Mo. 291
• Parties: SHELBY COUNTY v. BRAGG.
• Court: Missouri Supreme Court

36 S.W. 600

135 Mo. 291

SHELBY COUNTY v. BRAGG.

Supreme Court of Missouri, Division No. 1.

June 30, 1896.

LIMITATION — RUNNING OF STATUTE — FRAUDULENT CONCEALMENT.

Neither Rev. St. § 6775, providing that in actions for fraud the cause of action shall not accrue until discovery of the fraud, nor section 6789, providing that if any person, by any improper act, prevent the commencement of any action, such action may be begun after the commencement of the action shall have ceased to be so prevented, stops the running of the statute against an action by the county against a clerk of the circuit court, who is also ex officio recorder, to recover fees collected in excess of the amount he was entitled to retain as salary, because the statement of the fees collected, which he was required by Act March 30, 1874, to make, was erroneous, the books kept by the clerk showing the actual amount received, and the county court being required at each session to examine such statement, and being authorized to examine any person in regard to its truth.

Appeal from circuit court, Shelby county; Andrew Ellison, Judge.

Action by the county of Shelby against John J. Bragg. There was a judgment for defendant, and plaintiff appeals. Affirmed.

V. L. Drain, Jas. T. Lloyd and Thos. H. Bacon, for appellant. R. P. Giles and W. O. L. Jewett, for respondent.

MACFARLANE, J.

This suit is against defendant, as a former clerk of the circuit court, and ex officio recorder of the county, to recover an amount alleged to have been received by him in fees in excess of salary and deputy hire. It is charged that defendant held said offices for two terms or eight years, from January 1, 1875, to January 1, 1883, and during the term collected in fees the sum of $16,108.74, which was $3,277 in excess of the amount he was entitled to retain, and for which sum he was indebted to the county. The petition further charged, in order to avoid the operation of the statutes of limitations, that defendant, by his quarterly and annual statements, and statements made with the county court, falsely and fraudulently concealed from the court the true amount of fees received, and that the facts were not discovered until the year 1892, when this suit was at once commenced. Besides a general denial, defendant pleaded in bar of the action both the three and five years' statutes of limitation. He also pleaded the settlements in the county court as adjudications of the matter in issue. On the trial the annual reports of defendant as made to the county court were read in evidence. These were all verified by affidavit. The aggregate of fees earned according to these reports was $13,288.61. They show that he retained as salary $12,000, and that he paid for clerk's hire $1,949.70; making a total credit of $13,949.70. The reports were all approved by the courts. These reports gave no full, itemized statement of fees collected. For example, one item of the report made for 1875 was, "All costs in criminal and civil cases for 1875, not above provided, $405.05." Some of the statements were declared to be correct, while others were only stated to be approximately correct. In 1892 the county court, by an order of record, appointed a committee of experts to go through the books of the clerk and recorder for the eight years, and ascertain and report the fees earned by defendant during his whole term. The report of this committee, which purported to be full, made the fees earned in the two offices amount to $15,627.94. Each year is reported separately. On the trial, plaintiff offered these reports in evidence, but, as we understand from the record, they were excluded on objection by defendant. The experts who had examined the books and made the statements were permitted to testify as to the result of their examination which corresponded with their report, though they did not profess to know that defendant had actually received all the fees earned. At the conclusion of plaintiff's evidence the court directed a verdict for defendant. Judgment was thereupon entered for defendant, and plaintiff appealed.

The record does not disclose the ground upon which the court acted in ordering a verdict for defendant. If, therefore, it can be sustained upon any one of the defenses pleaded, the judgment should be affirmed. After a careful consideration, we are of the opinion that the action, when commenced, was barred by the statutes of limitation, and for that reason the judgment should be sustained. The action is at law for money had and received for the use of the county, and does not, therefore, fall into that class of continuing trusts to which the statutes of limitations do not apply until the trust is denied. "The trusts intended by the courts of equity not to be reached or affected by the statutes of limitation are those technical trusts which are not all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of courts of equity." Johnson v. Smith, 27 Mo. 593. The rule is that "in implied trusts which grow out of the facts and circumstances of each case the statute commences to run as soon as a party has a right to commence a suit to declare and enforce it." Keeton v. Keeton, 20 Mo. 530. The act of March 30, 1874, made it the duty of the clerk of circuit courts, who were also ex officio recorders, to make out a statement, verified by their affidavits, giving the amount of each fee received by them in each capacity during the then past years, from whom received, and for what services; also the number of assistants and deputies employed, the name of each, the length of time each was employed, and the amount paid each; and file the same with the county court at the first session of said court in each year. The county court was required at such session to examine such statement, was authorized to examine any person as to the truth of the same, and was required to allow necessary clerk hire, and deduct the same from the aggregate amount received. It was then provided that, if there should be an amount in the hands of the clerk exceeding the sum he was entitled to retain as salary, the same should be paid into the county treasury. Making a false affidavit to such statement was...