State ex rel. Cravens, to Use of Consolidated School Dist. No. 2 of Worth County v. Thompson

• Decision Date: 29 March 1929
• Parties: The State ex rel. R. S. Cravens, Secretary, To Use and Benefit of Consolidated School District No. 2 of Worth County, Appellant, v. D. W. Thompson et al
• Court: Missouri Supreme Court

17 S.W.2d 342

322 Mo. 444

The State ex rel. R. S. Cravens, Secretary, To Use and Benefit of Consolidated School District No. 2 of Worth County, Appellant, v. D. W. Thompson et al

Supreme Court of Missouri

March 29, 1929

Motion for Rehearing Overruled May 18, 1929.

Appeal from Holt Circuit Court; Hon. Guy B. Park, Judge.

Transferred to Kansas City Court of Appeals.

Edward G. Robison, C. V. Hastings and J. W. McKnight for appellants.

Ed Kelso, John Ewing and Mayer, Conkling & Sprague for respondents.

Seddon C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

This is an action seeking a recovery upon the official bond of the respondent, D. W. Thompson, which bond was given by him as the treasurer of Consolidated School District No. 2 of Worth County, Missouri. The action is prosecuted against D. W. Thompson, the principal of the bond and three individual sureties thereon. The bond is statutory (Sec. 11245, R. S. 1919), and binds the principal and sureties unto the State of Missouri in the sum of $ 10,000 conditioned that the said D. W. Thompson, treasurer of said consolidated school district, "shall render a faithful and just account of all money that may come into his hands as such treasurer, and otherwise perform the duties of his office according to law." The section of the statute, supra, pursuant to which the bond was given, further provides that, "on breach of the conditions of said bond, . . . suit [thereon] shall be prosecuted in the name of the State of Missouri, at the relation and to the use of the proper school district." The action was commenced in the Circuit Court of Worth County and went to the Circuit Court of Holt County on change of venue.

The petition is conventional, alleging the appointment and qualification of D. W. Thompson as the treasurer of said consolidated school district on July 7, 1923; the execution, delivery and approval of said bond, and the conditions thereof; and avers a breach of the conditions of said bond, in that said Thompson, at the expiration of his term of office in July, 1925, or at any other time, did not pay over to his successor in office all moneys coming into his hands as such treasurer as required by law, and has unlawfully retained, and still unlawfully retains and refuses to pay, such moneys to his successor in said office, or to the said consolidated school district, as by law and by the conditions of his said bond he was required so to do; and further avers that "the amount of said funds so unlawfully retained by him and which he failed to pay over to his successor in office at the expiration of his term of office on July 15, 1925, is $ 2292.52, which said amount he still retains and refuses to pay to said district or its proper officers." The petition prays judgment against the principal and the sureties of the said bond "in the sum of $ 10,000, the penalty of the aforesaid bond, said judgment to be satisfied upon the payment . . . of the said sum of $ 2292.52, together with interest at six per cent thereon from July 15, 1925, together with costs in this behalf expended."

The defendants answered, denying generally the allegations of the petition, and, as a special defense, alleging that the board of education of said consolidated school district had selected and designated the Farmers' Trust Company of Grant City, Missouri, as the depository of the moneys and funds of said consolidated school district; that said Thompson was not at any time a member of the board of education of said consolidated school district, and had no control or discretion whatsoever over the selection of said depository; that upon the designation and selection of said depository, the said Thompson, as treasurer of said consolidated school district, deposited the moneys and funds of said consolidated school district in said Farmers' Trust Company of Grant City, not because of any desire or selection upon his part, but solely because it had been designated and selected by said board of education as the depository of said consolidated school district.

The reply was a general denial of the averments of the answer.

The action was tried, without the aid of a jury, in the Circuit Court of Holt County, upon an agreed statement of facts, wherein it appears that the record of the minutes of a meeting of the board of education of said consolidated school district held on August 11, 1923, shows the following minute entry: "Bond of D. W. Thompson as Treasurer approved. Money to be kept in Farmers' Trust Company;" that said treasurer did deposit all said school moneys that came into his hands in the Farmers' Trust Company of Grant City, Missouri, in the name of D. W. Thompson, treasurer; that the said D. W. Thompson, as such treasurer, has accounted for and paid over to said consolidated school district all school moneys so received by him as such treasurer, except the sum of $ 2288.36, which sum he has not paid over to said consolidated school district; that said sum was on deposit, as aforesaid, in the Farmers' Trust Company of Grant City, Missouri, at the time said bank and trust company failed, on April 29, 1924, and was taken over by the Commissioner of Finance of the State of Missouri, and that no part of said sum of $ 2288.36 has been paid to the said D. W. Thompson, treasurer, or to said consolidated school district, by the said bank and trust company, or its liquidating officers; and that, if the defendants herein are liable upon said official bond, they and each of them are jointly and severally liable for the sum of $ 2288.36, together with interest thereon from July 15, 1925, and if judgment is rendered against the defendants, it shall be for said sum.

Upon such agreed statement of facts, the trial court entered judgment, finding the issues for the defendants and adjudging that the plaintiff take nothing by its suit, and that the defendants go hence without day and recover of and from the plaintiff their costs expended. After unsuccessful motions for a new trial and in arrest of judgment, the plaintiff was allowed an appeal to this court.

The cause has been ably and exhaustively argued and briefed on the merits by learned counsel for the respective parties, and the cause presents interesting and important questions of statutory construction, and of the legal liability of the defendant school district treasurer for moneys coming into his hands and deposited by him in a depository bank in his official capacity as such treasurer, which questions counsel insist are matters of first impression in this State. But however interesting and important the legal questions arising on the merits of the action may be, the question of our jurisdiction of the appeal appears at the very threshold of our consideration of the appeal, although counsel for the respective parties have not seen fit to raise or discuss the question of our jurisdiction of the appeal. But, while none of the parties, respondent or appellant, has questioned our jurisdiction herein, or raised such question by motion, brief or argument, nevertheless, we have repeatedly and uniformly held that jurisdiction cannot be conferred upon this court by the mere consent, acquiescence, or silence of the parties. [In re Tannory (Mo. Sup.), 297 S.W. 967; State ex rel. v. Sims, 309 Mo. 18; Springfield Southwestern Ry. Co. v. Schweitzer, 246 Mo. 122; Vandeventer v. Bank, 232 Mo. 618; City of St. Joseph v. Georgetown Lodge (Mo. Sup.), 8 S.W.2d 979; In re Wilson's Estate (Mo. Sup.), 8 S.W.2d 973.] We have likewise uniformly ruled that this...