State ex rel. Buchanan County v. Roach

Decision Date28 February 1977
Docket NumberNo. KCD,KCD
Citation548 S.W.2d 206
PartiesSTATE of Missouri ex rel. BUCHANAN COUNTY, Missouri, Respondent, v. Fred E. ROACH, Appellant. 27532.
CourtMissouri Court of Appeals

Maurice Pope, Pope & Nichols, St. Joseph, for appellant.

Richard A. Heider, Pros. Atty., Cynthia A. Clark, Asst. Pros Atty., St. Joseph, for respondent.

Before SWOFFORD, P. J., and MOORE, BONDURANT and CLYMER, Special Judges.

JAMES A. MOORE, Special Judge.

Relator brought this action for accounting against a former circuit clerk. Defendant Roach denied the allegation that he acted in a fiduciary capacity, alleged that he had rendered all accountings required of him by law and that all transactions of his tenure in office were of record open for inspection and unconcealed, and invoked the bar of the statute of limitations, particularly Secs. 516.130 and 516.360 RSMo 1969.

After an evidentiary hearing, the court ordered "the defendant to prepare and file with this Court on or before April 1, 1974, an accounting of all monies received by him as Circuit Clerk for any and all purposes that were not reported to the County Auditor and for which no records are available in the office of the Circuit Clerk, including interest received on investments of Circuit Clerk funds." In response thereto defendant filed an "answer". This response stated that defendant had accounted for all monies received by him for any and all purposes, that all such monies were reflected in the records of the County Auditor "and/or the office of the Circuit Clerk", that defendant received no monies not reported and for which no records were available, that defendant had made the reports required by statute, that defendant had no records of his own, that monies received were entered on the records of the Circuit Clerk and that no records were hidden, lost, altered, mutilated or destroyed.

Relator countered with a motion for final judgment. Defendant-appellant and his then co-defendant surety each requested findings of fact and conclusions of law. Defendant Roach specifically requested findings as to the sum total of funds coming into the office of the Circuit Clerk for the years 1963, 1964, 1965, and 1966 for which he had failed to account.

On the same day that the requests were filed statements of counsel were heard and the requests for findings of fact and conclusions of law were denied. The Court then found "the answer filed by Defendant Roach to Order of Court Directing Accounting is not in compliance with the Court's order, and the Court enters judgment against Defendant Roach and in favor of plaintiff on Count I of plaintiff's petition in the sum of $18,624.97." The entry continued to order, adjudge and decree the recovery of the sum of $18,724.97 from defendant-appellant and to memorialize the voluntary dismissal of two other counts of the petition. (One of these counts was bottomed on a different theory, and the other sought recovery from the surety of the principal sum together with interest, penalty and attorney's fee.) After unavailing motion for new trial, which again invoked the statute of limitations, defendant Roach appealed. We reverse.

The factual background is not essential to an understanding of all of appellant's three-fold attack on the action of the trial Court. However, it is vital as to one of the assignments of error and helpful to an understanding of the other two.

Appellant took office as circuit clerk January 1, 1927 and inherited the records and system of his predecessor. "Open" items commenced in 1915. After 40 years in office appellant was succeeded by one Kelly. In the transition the outgoing official turned over the sums of $60,000.00 on January 1, 1967, and of $1,842.27 on January 9, 1967 or a total of $61,842.27. He also furnished a list of all open accounts commencing in 1915 and ending with his term of office December 31, 1966. The aggregate of $74,699.46 was corrected to $74,196.92. He also left a list of checks for child support which had not been picked up.

Although no total is given for the second list, the two lists totaled $80,423.48. After a 500 hour audit a Certified Public Accountant found a difference of $18,624.97. (He apparently added to the mathematical difference between the adjusted total of the two lists and the total of the sums transferred a bank adjustment in the amount of $43.96).

Litigation followed, the details of which are unclear. In his brief, appellant refers to the "original case filed an April 26, 1968" against Roach and his bonding company. Respondent refers to three suits "filed by this plaintiff against this defendant" and the dismissal of the first and second without prejudice, prior to the institution of the instant case. There is no evidence in the Transcript on Appeal to substantiate the filing, pendency and disposition of the two earlier cases. However, respondent has twice filed with this Court envelopes containing purported Respondent's Exhibit "A" and Exhibit "B". These exhibits, copies of the petitions in the first and second cases, appear without authentication by a clerk, identification of a reporter, or blessing of a stipulation.

Other facts will emerge as they are pertinent to the several points assigned as error. We treat those points seriatim.

Appellant's first point is the refusal of the trial Court to comply with the requests of appellant to make findings of fact and conclusions of law as requested. The parties are in substantial agreement as to the mandatory character of Rule 73.01 [now Rule 73.01, subd. 1(b)] upon timely request for such findings and conclusions. Respondent, however,...

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4 cases
  • Carman v. Wieland
    • United States
    • Missouri Court of Appeals
    • July 16, 2013
    ...director of revenue, City of Ellisville v. Lohman, 972 S.W.2d 527 (Mo.App. E.D.1998); a circuit clerk, State ex rel. Buchanan County v. Roach, 548 S.W.2d 206 (Mo.App. K.C.D.1977); a county collector of revenue, State ex rel. School Dist. of St. Joseph v. Wells, 270 S.W.2d 857 (Mo.1954); the......
  • Stewart v. Vill. of Innsbrook
    • United States
    • U.S. District Court — Eastern District of Missouri
    • April 28, 2017
    ...director of revenue, City of Ellisville v. Lohman, 972 S.W.2d 527 (Mo. Ct. App. 1998); and a circuit clerk, State ex rel. Buchanan County v. Roach, 548 S.W.2d 206 (Mo. Ct. App. 1977). The phrase "act in an official capacity" is used to "delineate between an action performed for work purpose......
  • Gasper v. St. Charles County, 62701
    • United States
    • Missouri Court of Appeals
    • May 18, 1993
    ...A voluntary dismissal without prejudice is a species of "nonsuit" contemplated in § 516.230 RSMo 1986. State ex rel. Buchanan County v. Roach, 548 S.W.2d 206, 209 (Mo.App.1977).4 Rule 67.07 provides: "If a plaintiff who has once dismissed a civil action in any court commences a civil action......
  • In the Estate of Earl Klaas
    • United States
    • Missouri Court of Appeals
    • January 13, 2000
    ...plaintiff suffers a nonsuit in certain situations. Dismissal without prejudice is a species of "nonsuit." State ex rel. Buchanan County v. Roach, 548 S.W.2d 206, 209 (Mo.App. 1977). The Petition filed on September 24, therefore, was timely filed and served upon Our review of a ruling on sum......

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