State ex rel. Bates Cnty. v. Smith

• Decision Date: 31 October 1877
• Parties: THE STATE TO THE USE OF BATES COUNTY, APPELLANT, v. SMITH, ET AL.
• Court: Missouri Supreme Court

65 Mo. 464

THE STATE TO THE USE OF BATES COUNTY, APPELLANT,

v.SMITH, ET AL.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Vernon Circuit Court.--HON. JOHN D. PARKINSON, Judge.

R. O. Boggess for appellant.

In settling with collectors the county court acts as a fiscal agent. Its proceedings are not judicial, and have none of the effects of judgments. Phelps County v. Bishop, 46 Mo. 68; Reppy v. Jefferson County, 47 Mo. 66; Owens v. Andrew County, 49 Mo. 372; State ex rel. Morgan County v. Lutman 63 Mo. 210.

J. L. Smith with P. H. Holcomb and C. C. Bassett for appellant.

A collector's settlement with the county court is not in the nature of a judgment; neither is a quietus from the county clerk a bar against a suit. Citing, in addition to the cases examined by the court: Washington County v. Parlier, 5 Gilman (10 Ill.) 232. The quietus is nothing more than a formal receipt, and may be explained and shown to have been obtained fraudulently, erroneously or by mistake, like any other receipt. Price v. Johnson Co., 15 Mo. 433.

A. T. Holcomb for respondent.

When a settlement is made with a collector, and a quietus given him, his sureties are entitled to their protection, and can plead the settlement in bar to an action till it is set aside by due process. Sullivan Co. v. Burgess, 37 Mo. 300; State v. Roland, 23 Mo. 98.

NORTON, J.

This suit was instituted upon the bond of defendant, Smith, as collector of Bates county. The petition in substance alleges that Smith was elected sheriff and ex-officio collector of said county on the 3rd day of November, 1868, for two years from the 1st day of January, 1869; that he and his co-defendants, as sureties, executed the bond sued on, which is in the form required by law; that the tax books for the years 1869-'70, and the delinquent tax lists for the years 1864, 1865, 1866, 1867 and 1868, were placed in the hands of said Smith for collection, and that he collected on the same the sum of $105,579.46, $14,815.23 of which he failed to pay over and account for. For further breach it is assigned that defendant, Smith, collected on said tax books the said sum of $105,579.46, and failed to account for and pay over any part of it to said county. The cause, by change of venue, was transferred to the circuit court of Vernon county, in which court defendant, Smith, and the securities on the bond, filed separate answers. The answer of Smith's co-defendants denied that the bond sued on was their bond, also, that Smith had failed to perform the conditions thereof, and denied that Smith had collected any money for which he had not accounted. The statute of limitations of three years was set up in bar of plaintiff's action. It was also alleged in the answer that Smith had fully settled, paid over and accounted to Bates county for all money ever collected by him for said county while collector, and had been fully discharged and received a quietus for the same; that one of said settlements was made in December, 1869; that he paid the amount found due at that time into the county treasury, and received from the clerk of the county court a full quietus, upon his producing and filing with said clerk the the treasurer's receipt. It also alleged that another and final settlement was made by said Smith with the county court of said county on the 13th of February, and 22nd and 23rd days of March, 1871, after said Smith's time as sheriff and collector had expired, and after the election and qualification of his successor to said office; that all money collected by him during his term of office, was then accounted for, and that he paid the balance found to be due to said county, and received a full quietus for all of the taxes and revenue collected by him for said county. It is also set up in said answer as a further defense, that on the 20th of September, 1870, the county court of said county, by its order, required defendant, Smith, to execute, within ten days, a new bond as collector, which he failed to do, thereby rendering his office vacant and releasing defendants from any liability on said bond if they were ever bound. Defendant Smith's answer set up substantially the same defense, and pleaded the quietus received by him in bar of plaintiff's right of action.

Plaintiff, in the replication, denied all allegations in regard to the settlements and payment of money found to be due. By failing to deny, it admitted that defendant had received each quietus referred to in the answer. The replication set up that of the amount ascertained to be due on said settlement, said Smith failed to pay into the county treasury the sum of $4,088.09; that defendant, Smith, collected of the county fund of said county $8,973.87; of the road fund, the sum of $2,225.10; of the school fund, $2,096.07; of the bridge fund, $576.42, and of the court house fund, $943.77, all of which he failed to account for and pay over to the county; that in the said settlements said sums were not...