State ex rel. Knapp v. Finn

• Decision Date: 09 November 1886
• Citation: State ex rel. Knapp v. Finn, 23 Mo.App. 290 (Mo. App. 1886)
• Parties: THE STATE EX REL. KNAPP, STOUT & CO. COMPANY. Respondent, v. JOHN FINN ET AL., Appellants.
• Court: Missouri Court of Appeals

23 Mo.App. 290

THE STATE EX REL. KNAPP, STOUT & CO. COMPANY. Respondent,

v.JOHN FINN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 9, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

E. T. FARISH, for the appellants: The report which the sheriff makes under such orders of sale is like his return on an order of sale in a partition case, or on an execution, or any other process of court.And when such return is made, the statute of limitation is put in motion.The State ex rel. v. Lidwell,11 Mo. App. 567;Kirk v. Sportsman,48 Mo. 383.It appearing that the money was received during the running of the previous bond, and that the money was not on hand when the second bond was executed, the securities on the second bond are not liable.The State to use v. Taylor,6 Mo. App. 277;The State to use v. Witherson,40 Mo. 290;United States v. Farrar,5 Pet. 373;Brandt on Suretyship, sect. 449.FRANK J. DONOVAN, for one of the appellants: The cause of action on the bond, if any, is barred by our statute of limitations.Rev. Stat., sect. 3231.Haggerty's estate can not be held liable for money received and converted by the principal in the bond when the conversion was prior to the execution of the bond.The State to use v. Taylor,6 Mo. 277;The State v. Atherton,40 Mo. 209.

G. M. STEWART, for the respondent: The bond sued on is, in legal effect, as obligatory on the sureties to pay the money sued for as if executed before it had been received by the defendant, Finn.Pinkstaff v. The People,69 Ill. 148;Scofield v. Sewell[9 Hun] Sup. Court, N. Y. 157;Steele v. Graves,68 Ala. 17;Corprew v. Boyle,24 Gratt. 284;The State v. Drury,36 Mo. 281;Ingram v. McCombs,17 Mo. 558;The State v. McCormick,50 Mo. 568.The statute of limitations did not begin to run until after the time limited in the order, after the copy of the order had been served, which was in June, 1883.The State ex rel. v. Lidwell,11 Mo. App. 567-569;The State v. Minor,44 Mo. 373;Kirk v. Sportsman,48 Mo. 383;Succession of Hugh McCloskey,32 La. An. 146;Thurston v. Blockston,36 Md. 501;Bonner v. Young,68 Ala. 35.

ROMBAUER, J., delivered the opinion of the court.

This cause was heretofore before this court, and its opinion on the former appeal is reported in 19 Mo. App. 560.When the cause was remanded, the plaintiff withdrew its demurrers to the defendants' answers, setting up the statute of three years limitation, and filed a general reply to such answers.

The following facts appeared in evidence on the retrial of the cause.The defendant, Finn, was elected sheriff of the city of St. Louis for a term of two years in November, 1878.On the twenty-first of November, 1878, he gave bond as such sheriff.On the twenty-ninth of November, 1879, he was ordered by the court to give a new official bond in lieu of the bond which he had formerly given, and did give such bond with his present co-defendants as sureties.The bond thus given recites that it was given in lieu of the bond approved November 21, 1878, and is conditioned that said John Finn shall well and faithfully in all things discharge the duties of the sheriff of the said city of St. Louis during his continuance in said office.

In December, 1878, the plaintiff instituted suit by attachment, and caused the writ of attachment to be levied on certain personal property, which was subsequently by order of court sold by Finn as sheriff.On the fourth of January, 1879, Finn made his report of sale under this order, but did not pay the money into court, not being ordered so to do.The amount realized was $2,122.14.The controversy in the attachment proceeding was not terminated until 1883.In that year, and while the cause was still pending in the supreme court, the parties compromised the litigation, and as part of such compromise, the proceeds of the attachment sale were assigned to the plaintiff.The plaintiff thereupon, on the fourth of June, 1883, obtained an order of court directing the sheriff to pay such proceeds to him.November 30, 1883, E. T. Farish, attorney in fact for the sureties, did pay to the plaintiff on this claim three hundred and fifty dollars out of fees earned by sheriff Finn during his official term, which had been assigned to him for the benefit of the sureties.No part of the balance was ever paid.The present action was instituted September 20, 1884, and within three years after the plaintiff became entitled to the fund by assignment.

There was evidence tending to show that Finn had converted the money in controversy to his own use, prior to November 29, 1879, the date of the bond sued upon in this action.

This being all the evidence the trial court instructed the jury to find for the plaintiff, and the only question raised by the appeal is whether the plaintiff upon the facts shown was entitled to judgment as a matter of law.

The defendant sureties contend, that they became by the terms of the bond responsible only for such defaults of their principal as occurred thereafter, and not for his defaults during his entire official term, and that the evidence tending to show that the default occurred prior to the date of the bond, should have been submitted to the jury.This view is not tenable.The bond sued upon by its terms purports to take the place of the bond originally given, which, for some reason not disclosed by the record, was deemed insufficient.

Where an officer proves a defaulter and has held the office under different appointments, with several sets of sureties, it is now settled that those sureties alone will be responsible who were on the bond at the time when the defalcation occured.Draffin v. Boonville,8 Mo. 395;The State v. Smith,26 Mo. 226, 231;The State to use v. Atherton,40 Mo. 209, 220;The State to use v. McCormack,50 Mo. 570.This, in the absence of a contrary intention, is the law even where the bonds are successive bonds under the same appointment.Smith v. Paul's Ex.,21 Mo. 51.But in this case the bonds were given under the same appointment, and the contrary intention is manifest by the terms of the bond.The bond was to stand in lieu, or in place of the bond formerly given, and rendered the sureties responsible for the sheriff's conduct during his entire official term.

A question of greater difficulty is presented by the interposition of...