State ex rel. and to Use of Hickory County v. Davis
| Decision Date | 13 May 1957 |
| Docket Number | No. 45804,No. 1,45804,1 |
| Citation | 302 S.W.2d 892 |
| Parties | STATE of Missouri, at the Relation and to the Use of HICKORY COUNTY, Missouri, et al., Plaintiffs-Respondents, v. Alva L. DAVIS et al., Defendants-Appellants |
| Court | Missouri Supreme Court |
George H. Miller, Sedalia, F. M. Brady, Warsaw, C. P. Junge, Cole Camp, for appellants.
Poague, Poague & Brock, Haysler A. Poague, Barkley M. Brock, Clinton, Ralph Nevins, Hermitage, for respondents.
VAN OSDOL, Commissioner.
This is an action on the official bond of Alva L. Davis, formerly treasurer of Hickory County. The action was brought in the name of the State of Missouri, at the relation and to the use of Hickory County, and certain school districts in that county. It was alleged that Davis as treasurer had given an official bond to the county for the faithful performance of his duties in the office and for the disbursement, according to law, of all moneys coming into his hands as county treasurer; and that he had breached the bond by failing to account for funds coming into his hands to the use of the school districts of the county. Recovery was originally sought in the amount of $9,226.56. The cause having been submitted, a jury returned a verdict for defendants; but the trial court, on motion, set aside the verdict for defendants and entered judgment in favor of relator-plaintiff and against defendants in the sum of $6,631.64. The trial court did not rule relator-plaintiff's alternative motion for a new trial. Defendants appealed from the judgment to the Kansas City Court of Appeals. Inasmuch as Hickory County, the relator, is a proper party of record and a party of interest, the Kansas City Court of Appeals correctly transferred the cause to this court for review. Secs. 522.020 and 522.080, RSMo 1949, V.A.M.S.; State of Missouri, at the Relation and to the Use of Hickory County, Missouri, v. Davis, Mo.App., 292 S.W.2d 322; Art. V, Sec. 3, Const., V.A.M.S.
There was evidence introduced tending to show that Alva L. Davis was last elected to the office of treasurer of Hickory County at the general election in 1950, and his tenure during the term for which he was (last) elected, beginning January 1, 1951, was interrupted by his resignation August 24, 1951. Davis had been treasurer of Hickory County for two preceding terms. Defendants-sureties were signatories to the treasurer's bond for the term beginning January 1, 1951, which bond is involved in this action. The faithful performance by treasurer Davis of his official duties in former terms in office was assured by other bonds with signatories constituting some but not all of those signatory to the bond involved in the instant action.
After the resignation of treasurer Davis, the State Auditor made a special examination of the records, books and papers of the treasurer's office reflecting the treasurer's transactions during the period from July 1, 1948, to August 24, 1951. The auditor's report indicated there was a 'book' balance due the school districts of Hickory County in the sum of $39,323.51 as of January 1, 1951. This book balance was computed by beginning July 1, 1948, and bringing 'the figures up step by step to January 1st, 1951.' According to the report, there was a book balance of $7,143.39 at the time of the resignation of treasurer Davis, August 24, 1951. This amount, $7,143.39, and the further sum of $2,083.17, which the auditor's report indicated was an overpayment to the Hermitage School District, equaled $9,226.56, the amount for which recovery originally was sought by the prayer of relator's petition.
The evidence introduced tending support these figures consisted of entries in the line (pertaining to school districts' funds) of the auditor's 'Schedule of Treasurer's Receipts, Disbursements and Book Balances' for the period January 1, 1951, to August 24, 1951, and of statements contained in the auditor's report setting forth the book balances of various school districts as of August 24, 1951, which statement indicated an overpayment to the Hermitage School District in the amount of $2,083.17. Other entries in the auditor's report, upon relator's objection, were excluded when offered by defendants.
In endeavoring to make out a case, however, relator County, hereinafter referred to as 'plaintiff,' introduced further evidence tending to show a cash balance on deposit in the treasurer's account with the Bank of Hermitage, official depository of Hickory County, as of January 1, 1951, in the amount of $36,493.89; and there was evidence that the cash balance on deposit August 24, 1951, as reconciled with the circumstance of an outstanding check, was $401.33. The $36,493.89 cash balance in the Bank of Hermitage constituted the entire amount on deposit, and represented moneys of all of the funds of the county, including school funds, in the hands of Davis as treasurer of the county as of January 1, 1951. The funds of the county, including school funds, had been intermingled in such a way as to make it impossible to ascertain what portion of the $36,493.89 could be allocated to any one fund.
As stated, plaintiff had introduced entries of the auditor's report tending to show receipts and disbursements to the use of the school districts after January 1, 1951. The entries indicated treasurer Davis had received to the use of the school districts the amount of $108,617.20, and that he had disbursed to the use of the school districts $140,797.32, during the period January 1, 1951, to August 24, 1951. Testimony of the cashier of the Bank of Hermitage, in reading from the records of the bank, indicated, as stated, the cash balance in the treasurer's account, August 24, 1951, (as the balance was reconciled with reference to an outstanding check) was $401.33. Now, giving credence and conclusive probative effect to stated evidence introduced by plaintiff, it may be seen that taking into account $36,493.89, actual cash on deposit in the treasurer's bank account on January 1, 1951, and applying that amount as if it constituted funds of the school districts, and adding the amount of $108,617.20 (shown in the auditor's report as received after January 1, 1951, to the use of the school districts), and deducting the amount of the balance $401.33 remaining in the treasurer's bank account on August 24, 1951, and deducting the amount of $140,797.32, shown in the report as disbursements after January 1, 1951, to the use of the school districts, there would remain the sum of $3,912.44 due plaintiff to the use of the school distrcts of Hickory County as of August 24, 1951.
In the trial court's judgment for plaintiff for $6,631.64, the amount $3,912.44 was included, and this amount and the additional item of $2,083.17, stated in the auditor's report to have been overpaid to the Hermitage School District, constituted the two principal items. The total of these two items, $5,995.61, and interest on the total from August 24, 1951, to the date of the rendition of the judgment for plaintiff in the amount of $636.03, made up the amount of the judgment rendered for plaintiff, $6,631.64.
Defendants-appellants contend the trial court erred in setting aside the jury's verdict and the ensuing judgment for defendants, and in rendering judgment for plaintiff. Defendants-appellants urge that any defalcation in the treasurer's office occurred prior to January 1, 1951, and that the evidence presented as to the time of the alleged defalcations and as to the amounts thereof was not conclusive. It is said these issues of fact were for the jury. Plaintiff-respondent County, on the other hand, contends there were no issues of fact for the determination of a jury. Plaintiff says that of the facts and figures, which plaintiff's evidence tended to show and which we have stated supra, none were disputed in any way, and there was no issue of fact for the jury. It is argued that treasurer Davis had $36,493.89 cash on hand when he began to serve the term beginning January 1, 1951, and that he and his bondsmen are estopped to deny that this was school money.
Generally, it is the rule that where an officer succeeds himself in office and qualifies therefor by giving a new bond, the sureties on each bond may be held liable only for defalcations occurring during that term of office for which their bond was given. Draffen v. Boonville, 8 Mo. 395; State, to Use of Lancaster v. Jones, 89 Mo. 470, 1 S.W. 355; State ex rel. Douglas County v. Alsup, 91 Mo. 172, 4 S.W. 31; 67 C.J.S. Officers Sec. 163, p. 467.
Without deciding, but for the moment assuming, the validity of plaintiff County's theory of applying the cash balance of $36,493.89 of January 1st to the treasurer's obligation to the school districts, and assuming the correctness of the computations (considering the cash balance of $401.33 of August 24th and the entries comprising the receipts, disbursements and school fund figures indicated in the portions of the auditor's report introduced into evidence by plaintiff) in tending to show there remained $3,912.44 due the school districts as of August 24th and in tending to show there was an overpayment to the Hermitage School District of $2,083.17, nevertheless, the trial court's order setting aside the jury's verdict and judgment for defendants and entering judgment for plaintiff in the aggregate of these amounts (or in any amount) plus interest, was erroneous.
In the trial of this case, an action at law, the parties were availing themselves of their right to the trial of the issues of fact by a jury. In this case, the issues of fact were not submitted to the trial court as the trier of the fact. There is no apparent basis in this case for any exception to the rule which may be stated in this way--'Where a party asserts the affirmative of a proposition and proof of it is necessary to sustain his point, the truth and weight of his evidence, though uncontradicted, is for the jury.' State ex rel....
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