State Ex rel. C. E. Courtney v. Callaway
| Citation | 237 S.W. 173,208 Mo.App. 447 |
| Parties | STATE OF MISSOURI, ex rel, C. E. COURTNEY, Appellant, v. T. H. CALLAWAY et al., Respondents |
| Decision Date | 09 January 1922 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Cass County.--Hon. C. A. Calvird Judge.
REVERSED AND REMANDED (with directions.)
Judgment reversed.
D. C Chastain and Gardner Smith for appellant.
Peyton A. Parks, J. S. Brierly and A. A. Whitsitt for respondents.
--This is an action upon the official bond of the circuit clerk of Cass County, Missouri. Plaintiff Courtney, a citizen of the State of Kansas, entered into a contract for the sale of his Kansas farm to Claude Clark and Charley Houston, residents of Holt County, Missouri.
Under the terms of said contract Clark and Houston deposited in the Bank of Drexel in Drexel, Cass County, Mo., the sum of $ 1,000 as down payment on the purchase price of said land, to be held by said bank in escrow awaiting the deed to the lands by Courtney, a satisfactory abstract of title, etc. The said $ 1,000 then was to be applied to the purchase price of said land and in case of failure of the purchasers to complete the deal the amount was to be paid to Courtney as liquidated damages.
Clark and Huston did not carry out their part of the contract and Courtney demanded of the depository bank the payment to him of the $ 1,000 aforesaid. The bank refused to pay said funds over to Courtney but recommended that a suit be brought and suggested that Courtney see one Charles W. Hight, a reputable attorney of Harrisonville, Mo. Acting upon this suggestion plaintiff employed Hight and through him filed a bill of interpleader in the circuit court of Cass county.
It is charged by defendant, and the testimony tends to show, that this bill of interpleader was filed as a result of a joint arrangement and understanding between the depository bank and plaintiff Courtney, through their common attorney, Hight.
Plaintiff who, at the time the interpleader suit was filed was a resident of the State of Kansas, entered appearance through his attorney who filed the bill of interpleader for the depository bank, while the purchasers of the land, Clark & Houston, were served with process in Holt County, and did not appear in said suit. The record entry offered in evidence shows that the said sum of $ 1,000 was, by order of the court, paid into the hands of the defendant Callaway, as clerk of the circuit court of Cass county.
Defendant Callaway deposited said fund in the Bank of Harrisonville, Missouri, to his credit as clerk of the circuit court, together with other funds that came into his hands by virtue of his office. The Bank of Harrisonville, at the time of said deposit, was a bank of high standing, though it failed shortly after said deposit was made. Callaway, defendant herein, was not a party to the suit of interpleader.
In the interpleader suit the court made a minute entry on the docket that Courtney was entitled to have the money turned over to him. Courtney then demanded of defendant Callaway the funds in controversy but payment thereof was refused and Courtney filed this suit to recover of and from the said Callaway the amount of said fund, less the costs paid and accrued, or the total sum of $ 943.90. This suit is directed against defendant Callaway's official bond,--T. H. Callaway, principal W. A. Welborn, J. F. Callaway, T. F. Callaway, D. B. Barnett and A. L. Burney, as securities, all of whom were made parties defendant. The petition states that the bond was executed December 21, 1918, in the sum of $ 10,000, conditioned as follows:
"The condition of the above bond is such, however, that whereas the said T. H. Callaway was, on the 5th day of November, 1918, duly elected to the office of circuit clerk of said county, and has been duly commissioned; now therefore if the said T. H. Callaway shall faithfully perform the duties of said office, according to law, then this obligation is void, otherwise to remain in full force and effect."
The said bond was duly approved and filed. A. L. Burney, one of the sureties on said bond, is dead and his estate is insolvent.
The petition charges that the principal on said bond is guilty of a breach thereof by reason of the facts hereinabove recited relative to his refusal to respond to the finding of the court in the interplea suit above referred to, on demand of plaintiff Courtney to pay to him the sum of money therein involved.
The amended answer admits that at all the times mentioned in said petition he was, and still is, clerk of the circuit court of Cass county, Missouri, and that, together with his co-defendants, he executed the bond pleaded in the petition. Then follows a general denial. By way of affirmative defense the answer pleads that there was no service on defendants Courtney, Clark and Houston in the bill of interpleader, which said cause was the basis of the court's judgment and order which forms the basis of the present suit, and that said Courtney did not appear as a party in said action. That the payment of $ 1,000 to defendant was voluntary, and that defendant thereby became bailee of said fund on January 14, 1920. That the deposit by him in his own name, as clerk of the said funds in the Bank of Harrisonville was in good faith and with due care and without negligence or fault on his part. That the costs mentioned in plaintiff's petition were paid by said defendant clerk upon the direction and on behalf of the Bank of Drexel, depository of said fund in the suit upon the bill of interpleader aforesaid.
As further defense the answer pleads the failure of the Bank of Harrisonville, that the assets thereof are in process of liquidation and the amount that can be realized from the deposits therein is uncertain and not known, and that the defendant offered, and still offers, to deliver to the person entitled thereto an assignment of demand against said Bank of Harrisonville by reason of said deposit. And, as further affirmative defense, the answer states that, as said fund did not come into the hands or possession of defendant as clerk of the circuit court of Cass county, Missouri, by reason of any execution or any fund coming into his hands as such clerk, or by reason of any lawful order of court having jurisdiction to make the same.
The reply was a general denial of all new matter contained in the answers of defendants.
The cause was tried to the court, a jury having been waived, and on June 16, 1921, the court entered a judgment in favor of defendants. Plaintiff appeals.
Plaintiff's first point is that the fund in question was received by the circuit clerk by virtue of his office.
This point goes directly to the heart of the issue herein and upon its proper solution depends the determination of this appeal.
However, it may clarify the situation somewhat to consider the meaning of the clause in the bond of the defendant clerk that "he shall faithfully perform the duties of said office according to law." Section 2122, Revised Statutes 1919 (2685, R. S. 1909), defines the duties of clerk of the circuit court as follows:
"Every clerk shall record the judgments, rules, orders and other proceedings of the court, and make a complete alphabetical index thereto; issue and attest all process when required by law and affix the seal of his office thereto, or if none be provided, then his private seal; keep a perfect account of all moneys coming into his hands on account of costs or otherwise, and punctually pay over the same. . . ."
Section 2112, Revised Statutes 1919 (2675, R. S. 1909), provides: "The bond shall be conditioned that he will faithfully perform the duties of his office, and pay over all moneys which may come to his hand by virtue of his office," etc.
When therefore, the defendant clerk bound himself faithfully to perform the duties of said office according to law, he assumed, among other obligations, one requiring him to pay over all money coming to his hand by virtue of his said office. [State ex rel. v. Moore, 74 Mo. 413.] In determining whether...
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