State ex rel. and to Use of City of St. Louis v. Priest

• Decision Date: 12 June 1941
• Docket Number: 37402
• Citation: 152 S.W.2d 109,348 Mo. 37
• Parties: State of Missouri at the relation and to the use of the City of St. Louis, a Municipal Corporation, Relator, v. H. Sam Priest, Clerk of the Circuit Court for the Eighth Judicial Circuit of the State of Missouri, and Fidelity & Deposit Company of Maryland, a Corporation
• Court: Missouri Supreme Court

152 S.W.2d 109

348 Mo. 37

State of Missouri at the relation and to the use of the City of St. Louis, a Municipal Corporation, Relator,

v.

H. Sam Priest, Clerk of the Circuit Court for the Eighth Judicial Circuit of the State of Missouri, and Fidelity & Deposit Company of Maryland, a Corporation

No. 37402

Supreme Court of Missouri

June 12, 1941

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed.

E H. Wayman for City of St. Louis.

(1) The court erred in sustaining the demurrers of defendants at the close of plaintiff's case and in taking the case from the jury. (a) In determining whether plaintiff has made a case to go to the jury, plaintiff's evidence must be accepted as true, together with all reasonable inferences that may be drawn from it. Mosely v. Sum, 130 S.W.2d 465, 344 Mo. 969; Cento v. Security Bldg. Co., 99 S.W.2d 1; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950. (b) The clerk of the circuit court must perform the duties of his office with diligence, and he may not set up want of time as a defense when the duties may be performed by deputies. State ex rel. Funk v. Turner, 42 S.W.2d 594, 328 Mo 604; Randol v. Garoutti, 78 Mo.App. 609; Knox County v. Humbolt, 110 Mo. 67; 46 C. J. 1036; 22 R. C L. 461; State ex rel. v. Hackman, 265 S.W. 532, 305 Mo. 342; State ex rel. Kansas City v. Renick, 157 Mo. 292; Neal Blum Co. v. Rogers, 141 Ga. 808, 82 S.E. 280; First Natl. Bank of Sutherland v. Clements, 97 Iowa 542, 54 N.W. 197. (2) It was the duty of the clerk of the circuit court to issue executions by preparing them and delivering them to the sheriff, and the clerk and his surety are liable for the negligent failure of the clerk to prepare executions and deliver them to the sheriff in time to avoid plaintiff's damage. (a) The word "issue," as used in the statutes pertaining to the duties of the circuit clerk in issuing executions, particularly in Section 11676, Revised Statutes 1929, includes delivery to the sheriff. R. S. 1929, secs. 1158, 11676; Burton v. Deleplain, 25 Mo.App. 376; Peterson v. Carpenter, 108 Mich. 608; First Natl. Bank v. Dwight, 83 Mich. 191; Burrell v. Hollands, 29 N.Y.S. 515; Peace v. Ritchie, 132 Ill. 638; Webster v. Sharpe, 121 S.E. 911; Sralina v. Saravana, 173 N.E. 281, 341 Ill. 236; Snell v. Knowles, 87 S.W.2d 871. (b) It had been the practice and custom of the circuit clerk for many years to deliver executions to the sheriff, and the clerk and his surety are liable for a negligent failure to deliver executions to the sheriff in time to avoid plaintiff's damage. The court erred in excluding evidence of the practice and custom of the clerk in delivering executions to the sheriff. In re Bernays' Estate, 126 S.W.2d 209, 344 Mo. 135; Williams v. Williams, 30 S.W.2d 69, 325 Mo. 963; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 343 Mo. 98; Grand Rapids v. Krakowski, 174 N.W. 201, 207 Mich. 483; Rhodes v. Bell, 230 Mo. 138; Heman v. Larkin, 99 Mo.App. 294. The court erred in holding in effect that the duties of the clerk of the circuit court of St. Louis could not be enlarged by the practice and custom of the clerk in delivering executions to the sheriff so as to make the clerk's surety liable for a failure to deliver executions with due diligence, even though plaintiff relied upon such practice and custom and was thereby damaged. United States v. Howard, 184 U.S. 676, 46 L.Ed. 754; State ex rel. Courtney v. Callaway, 237 S.W. 173, 208 Mo.App. 447; 11 C. J. S. 418; Grand Rapids v. Krakowski, 174 N.W. 201, 207 Mich. 483; United States v. Howard, 102 F. 77; Eames v. Claflin Co., 239 F. 631; Gulf Refining Co. v. Universal Ins. Co., 32 F.2d 555; Blythe v. Richards, 13 Am. Dec. 672, 10 Serg. & Raule 261; State ex rel. v. F. & D. Co., 112 S.E. 319, 91 W.Va. 191; 14 C. J. S. 1257. (c) The circuit clerk having held himself out to deliver the executions to the sheriff under color of office, if not by virtue of office, the clerk and his surety are liable for a negligent failure to deliver executions to the sheriff with diligence. City of Festus v. Kausler, 105 S.W.2d 646; State ex rel. v. Roth, 330 Mo. 105, 49 S.W.2d 109; Day v. Natl. Bond. & Inv. Co., 99 S.W.2d 117; Richland County v. Amer. Surety Co., 92 S.C. 329, 75 S.E. 549; Hall v. Kimsey, 173 S.E. 437, 48 Ga.App. 605. (d) The circuit court ordered the clerk to issue the executions, and the clerk, being the ministerial officer of the court, was under the duty to perform the order with diligence, and the surety is liable for the negligent failure to perform the order of the court with diligence. St. Louis v. Thornton, 8 Mo.App. 27; State ex rel. v. Cockrell, 217 S.W. 524, 280 Mo. 269; 14 C. J. S. 1211, sec. 1; State ex rel. v. F. & D. Co., 112 S.E. 319, 91 W.Va. 191. (3) The circuit clerk not even having prepared the executions, ordered issued by the court, before the expiration of limitation, a breach of the official bond was shown and plaintiff was entitled to recover. R. S. 1929, secs. 1158, 11676; State v. McLeod, 5 Jones' L. Rep. 318; McKiethen v. Blue, 149 N.C. 95; Snell v. Knowles, 87 S.W.2d 871. (4) The court erred in holding that the circuit clerk was not presumed to know that delivery to the sheriff within ten years from the date of judgment was necessary in order that a valid levy might be made under the executions. State ex rel. Jacobsmeyer v. Thatcher, 92 S.W.2d 640, 338 Mo. 622; State v. Weatherby, 129 S.W.2d 887, 344 Mo. 848; Multon v. Scully, 89 A. 944, 111 Me. 428; State ex rel. Phillips v. Green, 124 Mo.App. 80; Baltimore, etc., Railroad Co. v. Gaulter, 165 Ill. 233, 49 N.E. 256; 11 C. J. 910. (5) The court erred in holding that any lack of diligence on the part of the circuit clerk did not cause appellant's damage. R. S. 1929, secs. 1158, 11676; Burton v. Deleplain, 25 Mo.App. 376; Baltimore & Ohio Railroad Co. v. Weedon, 78 F. 584.

Igoe, Carroll, Keefe & McAfee for H. Sam Priest.

(1) Even on plaintiff's theory that by securing orders on March 2 and March 5, 1937, for executions, it had done everything incumbent upon it to enforce its judgment and that the duty of proceeding thenceforth was upon the court's officers, no cause of action is shown against respondent circuit clerk. (a) When the holder of a judgment has done everything necessary for him to do for the collection thereof, the Statute of Limitations is stayed pending the discharge of the various duties of public officials. R. S 1929, secs. 886, 1113; Seested v. Dickey, 318 Mo. 192, 300 S.W. 1088; State ex rel. v. Producers' Gravel Co., 341 Mo. 1106, 21 S.W.2d 521; Friel v. Alewell, 318 Mo. 1, 298 S.W. 762; Burton v. Deleplain, 25 Mo.App. 376. (b) If, as appellant claims, it completed steps to enforce judgment prior to expiration of statute, the executions in this case are valid and there is no cause of action. (2) The requirement that the clerk "issue" executions does not include delivery by him to the sheriff. Sec. 8, Art. XXI, Char. of the City of St. Louis; R. S. 1929, secs. 1158, 3022, 11676; Burton v. Deleplain, 25 Mo.App. 376; Hoover v. Mo. Pac. Ry. Co., 115 Mo. 77; Davis v. McCann, 143 Mo. 172; Davis v. Roller, 106 Va. 46, 55 S.E. 4, 117 Am. St. Rep. 947. (a) The owner of a judgment has exclusive control over it and may proceed or desist from enforcing it, as he please, without interference from the clerk. R. S. 1929, secs. 1152-1155; Peoples Savs. Bank v. McDowell, 204 S.W. 406; Davis v. McCann, 143 Mo. 172; Hoover v. Mo. Pac. Ry. Co., 115 Mo. 77; St. Louis v. Wall, 124 S.W.2d 616. (3) The duties of the office of clerk of the circuit court are controlled by statute. Jefferson Standard Life Ins. Co. v. Buckner, 201 N.C. 78; Securities Finance Co. v. Gentry, 109 So. 220; Reed v. Turner, 200 N.C. 78; 46 C. J. 10673; State ex rel. Walker v. Bus, 36 S.W. 636; Shambaugh County Treas. v. City Bank, 226 N.W. 460, 65 A. L. R. 804; Dickenson v. Riley, 86 F.2d 385; Ohio Farmers Assn. v. Davis, 55 Ohio App. 329, 17 N.E.2d 924. (a) Powers and duties of the clerk cannot be amended by custom, and evidence of local practice was properly excluded. Walters v. Senf, 115 Mo. 524; Knox County v. Goggin, 105 Mo. 182; Davis v. Natl. Surety Co., 35 S.W.2d 560; Lee v. Fid. & Deposit Co. of Maryland, 229 Ala. 546, 65 A. L. R. 811; 17 C. J., p. 473. (b) The clerk was under no duty by "color of office" to deliver executions to the sheriff. Lee v. Fidelity & Deposit Co., 229 Ala. 546. There is no showing or offer to show that the clerk held himself out as having any such official duty. Weidler v. Arizona Power Co., 39 Ariz. 390, 7 P.2d 241. The evidence affirmatively shows that plaintiff's failure to enforce its process within time was because of its conclusion of law as to the amount of time available; not because of any reliance on any custom or "color of office" of the clerk. (4) There was no notice to the clerk of any emergency; the executions were ready for service in ample time for return to the term at which plaintiff had directed that they be returnable and there is no evidence of negligence or misfeasance on the part of the clerk. (a) Since it was plaintiff's duty to call for and control the enforcement of its executions, no act of the clerk can be regarded as the proximate cause of damage unless it be shown that but for such act plaintiff would have enforced its judgment. Failure of plaintiff to call for and see to the enforcement of its executions was the proximate cause of its damage, if any. Mayfield v. K. C. So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Stoll v. First Natl. Bank, 132 S.W.2d 676; Feeherty v. Sullivan, 129 S.W.2d 926. (b) The clerk was under no duty to do anything in connection with the executions in question until a request was received from the comptroller. Sec. 8, Art. XXI, Char. City of St. Louis; R. S. 1929, sec. 11676; State ex rel. Skrainka...