State ex rel. Douglas County v. Alsup

• Decision Date: 28 February 1887
• Citation: 4 S.W. 31,91 Mo. 172
• Parties: The State ex rel. Douglas County v. Alsup, Administrator, et al., Appellants
• Court: Missouri Supreme Court

4 S.W. 31

91 Mo. 172

The State ex rel. Douglas County v. Alsup, Administrator, et al., Appellants

Supreme Court of Missouri

February 28, 1887

Appeal from Webster Circuit Court. -- Hon. Ben. V. Alton, Judge.

Reversed and Remanded.

D. H McIntyre and Thomas H. Musick for appellants.

(1) If proper charges had been made and credits given and commissions allowed, Alsup would not have appeared as a defaulter on either bond. (2) But, so far as the first term is concerned, the whole matter is res judicata, and the settlement of January 19, 1877, the judgment thereon and payment thereof are conclusive of the rights of all parties on the first bond and to that date. Outram v. Moorewood 3 East, 346; Railroad v. Commissioners, 12 Kansas, 127; Packet Co. v. Sickles, 5 Wall. 580 592; Wood v. Jackson, 8 Wend. 10, 16, 31, 36; Hollister v. Abbott, 11 Foster, 442, 448; Packet Co. v. Sickles, 24 How. 333, 343; Dunford's Succession, 1 La. An. 93; Ehle v. Bingham, 7 Barb. 497; Miller v. Maurice, 6 Hill, 114; Laurence v. Hunt, 10 Wend. 82; Hickerson v. The City of Mexico, 58 Mo. 61, 65; Chouteau v. Gibson, 78 Mo. 38, 45; Peake v. Jamison, 82 Mo. 552, 557. (3) Therefore, the rejected payments made between January 19, and September, 12 1877, should be all credited on the second term. This would overpay the deficit ($ 490.08), found by the referees and court, by $ 1,320.79. (4) We are entitled on the second term to the commissions found by Referee Stewart, eight hundred and ninety-six dollars. This added to the balance claimed in the last paragraph would give $ 2,216.79 as the credit balance in favor of defendant (W. S., sec. 147, p. 1188; sec. 1, act of May 2, 1877, p. 253), and he was not required to pay his commissions into the treasury, but was authorized to retain them. Sec. 1, act of March 28, 1877, p. 389; sec. 16, act of April 28, 1877, p. 382. The amount of the judgment was for less than the sum of the commissions. The sum of the commissions was not disputed; the court only found that he was not entitled to commissions. But as the collector was not required to pay his commissions in, no duty was required, under his bond, as to this matter, and, hence, there could be no breach of his bond on that account. Turpin v. McKee, 7 Dana, 301. (5) But, even were these rejected payments disallowed, there can be no good reason why we should not have the commismissions, eight hundred and ninety-six dollars, found on second term by Referee Stewart. This alone would overpay the $ 490.08 deficit found and leave a balance of $ 405.92 in our favor. The statute does not require comsions to be paid over, but leaves them in the hands of the collector. When the collector pays over all moneys collected, except his commission, there can be neither law nor reason in saying that he is a defaulter, and shall not have his commissions; and he cannot be a defaulter unless he retains and fails to account for a surplus of the revenue which comes into his hands over and above his commission. United States v. Babbitt, 5 Otto, 334; United States v. Babbitt, 1 Black. 55.

F. S. Heffernan for respondent.

(1) The report of the referee stands as the verdict of a jury. Perry's Adm'r v. Maguire, 31 Mo. 287; Benevolent Ass'n v. Kribben, 48 Mo. 37; Franz v. Dietrick, 49 Mo. 95; Hays v. Hays, 26 Mo. 123; Maguire v. McCaffrey, 24 Mo. 552. (2) Objections to the report of the referee cannot be made for the first time in this court. Elwardson v. Garnhart, 56 Mo. 81; Reinecke v. Jod, 56 Mo. 386. (3) The appellant having failed to pay the taxes and the licenses into the state and county treasuries, as provided by law, is not entitled to commission on money thus held, and should pay a penalty of ten per cent. R. S., sec. 6782.

OPINION

Sherwood, J.

Action on bond of J. S. Alsup, formerly collector of Douglas county. He being dead, this suit was brought in the circuit court of Douglas county against his administrator, and against his sureties on his second bond, and the cause was removed, by change of venue, to the Webster circuit court, where judgment went on the bond, and execution was ordered to issue for the sum of $ 490.08. On settlement with the county court, on the nineteenth day of January, 1877, by the collector for his first term, i. e., for the years 1875 and 1876, a balance was found against him of $ 889.71, and action being brought therefor against his administrator and the sureties on the first bond, judgment was recovered for that sum, and that judgment satisfied. The sureties on the second bond, the one now in suit, are not the same as those on the bond for the first term. The record in this cause is wonderfully confused, and the finding of the trial court is based on the action of the two referees, who differ as to the amount which should be allowed for the collector's commissions, to the extent of $ 1,388.63.

The defendants asked the following declarations of law:

"1. That unless Collector Alsup was a defaulter, he was entitled to commissions on his collections; and, if his payments together with his commissions thereon, equal or exceed his liability on the bond of 1877-'78, he is not a defaulter, and is entitled to have his commissions allowed."

"2. That the settlement of Collector Alsup with the county court on nineteenth of January, 1877, for the term of 1875-'76, in which a balance was found of $ 889.71 against him, and the judgment of this court on said bond for said term in said sum of $ 889.71, and the payment...