State ex rel, Lafayette Cnty. v. O'Gorman

• Decision Date: 30 April 1882
• Citation: 75 Mo. 370
• Parties: THE STATE ex rel LAFAYETTE COUNTY v. O'GORMAN, Appellant.
• Court: Missouri Supreme Court

75 Mo. 370

THE STATE ex rel LAFAYETTE COUNTY

v.O'GORMAN, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Ray Circuit Court.--HON. G. W. DUNN, Judge.

AFFIRMED.

Alex. Graves for appellants.

Wallace & Chiles for respondent.

NORTON, J.

This suit was instituted in the Lafayette county circuit court on a bond executed by defendant O'Gorman as county clerk of said county with his co-defendants as sureties.

The petition set out at great length the cause of action, which being stripped of its verbiage substantially alleges that O'Gorman was elected county clerk of the county court of Lafayette county for four years, his term of office commencing on the 1st day of January, 1871, and ending on the 1st day of January, 1875; that before entering on his duties he executed the bond sued upon, in the penal sum of $5,000, to be void on condition that he faithfully discharged all the duties of clerk of the county court in accordance with law; that by virtue of an act of the general assembly passed March 21st, 1868, it became the duty of said O'Gorman at the end of each year to deliver to the judges or justices of the county court of said county a statement, under oath and in detail, showing the aggregate amount of fees received by him as clerk during the year last past, and to pay into the treasury, upon the order of the county court, the surplus remaining after deducting from the aggregate of fees received by him the sum of $2,500, and such sums for deputies or assistants in his office as the court might allow; that said O'Gorman did not, at the end of the years 1871, 1872 and 1873 comply with the requirements of said act, in making within the time prescribed, or at any time, a statement of the fees received by him, but on the contrary, and in evasion of the statute and with the design of cheating and defrauding the said county of Lafayette, by false representations, fraudulently deceived and procured the county court to direct and have entered on the records of said court by said O'Gorman the following false and fraudulent entries.

“Lafayette county court, January term, fourth day, January 4th, 1872.

Now, at this day comes James O'Gorman, clerk of this court, and proves to the satisfaction of the court that the compensation received by him during the last year does not exceed that allowed by law.”

And the following, to-wit:

“Lafayette county court, February term, fifth day, February 7th, 1873.

Now, at this day comes James O'Gorman, clerk of this court, and makes his settlement of all fees received by him for the year 1872, which is by the court approved.”

And the following, to-wit:

“Lafayette county court, May term, fourth day, May 14th, 1874.

Now, at this day comes James O'Gorman and presents to the court here, his statement proving to the satisfaction of the court that the amount of fees received by him does not exceed that allowed by law, said statement being for the year 1873, and which is by the court approved and ordered filed.”

It is then averred that Lafayette county court instituted a suit for the purpose of vacating said orders, the venue of which being changed to the circuit court of Ray county, the cause was in that court tried at its February term, 1877, and a judgment rendered in March, 1877, vacating and overruling said orders on the ground that they were fraudulently obtained to be made by said O'Gorman; that afterward at the June term, 1877, of the Lafayette county court, the said court ordered a citation to be issued to said O'Gorman requiring him to appear at the July term of said court and make the statements required by the act of 1868, of the fees received by him for each of the years 1871, 1872 and 1873; that at said July term said O'Gorman appeared and filed his motion to dismiss the proceeding, which being overruled he declined and refused to make or file any statement or statements in regard to fees received by him during said years, and also declined further to appear to said proceedings, whereupon the court proceeded to ascertain the fees and emoluments received by said O'Gorman as clerk for each of said years, and found from the evidence, after deducting $2,500 and allowing $2,700 for deputies and assistants for each year, that for the year 1871 there was a surplus of $2,404.39; for the year 1872, a surplus of 4,629.36, and for the year 1873, a surplus of $2,583.77, which respective sums so found O'Gorman was ordered to pay into the county treasury.

The petition then assigns six breaches of the bond; and as the court found for defendants on the first, second, third and fourth breaches, it is only necessary to notice the fifth and sixth, upon which the finding was for plaintiff. The fifth breach in substance is, that defendant failed to make any statement as required by law of the fees received by him for the year 1872, that he had received for that year the sum of $4,679.36 in excess of what he was entitled to retain as clerk, had not paid the same into the treasury, but had converted the same to his own use. The sixth breach was for O'Gorman's failure to account for the fees of the year 1873. It is also averred that plaintiff commenced an action against defendants on said bond, in the circuit court of Lafayette county on the 16th day of December, 1875, and assigned the same breaches as breaches five and six assigned in this suit; that defendants appeared to said action, and plaintiff on the 21st day of August, 1876, suffered a non-suit in said action.

Defendants O'Gorman and Allen answered separately, and each of them set up the statute of limitations as a bar to the plaintiff's suit. Defendant Aull also answered separately, and after pleading the statute of limitations, also set up that the county court had settled with said O'Gorman for all fees received by him for the years 1871, 1872 and 1873, and relied upon the orders made by said court and particularly set out in the petition of plaintiff for each of these years.

Plaintiff in his replication denies the new matter set up, and avers that the commencement of an action within the time prescribed by the statute was prevented by the fraudulent conduct of said O'Gorman in making fraudulent settlements with the county court, and avers that while a suit was pending to set aside and vacate said settlement and orders, plaintiff, on the 16th day of December, 1875, commenced an action on said bond, assigning the same breaches as set forth in breaches four, five and six, in the present suit; that defendants appeared to said action, and on the 12th day of August, 1876, plaintiff suffered a non-suit and commenced the present suit on the 19th day of July, 1877, within one year after such non-suit. It is also averred that the settlement and orders relied upon by defendant in his answer had been vacated and set aside as fraudulent by a decree of the Ray county circuit court, to which court a suit, commenced in Lafayette county circuit court for the purpose of setting aside and vacating said orders, had been transferred by a change of venue.

On the trial the court found for defendant on the first, second, third and fourth breaches assigned, and for plaintiff on the fifth and sixth breaches, and rendered judgment accordingly, from which defendants O'Gorman and Aull have appealed to this court. The record is a voluminous one, the pleadings covering twenty-eight pages of printed matter, and the instructions given and refused nearly sixteen pages. We will not go into a detail of the mass of matter thus presented, but will confine our examination to the vital points which the record presents.

1. COUNTY CLERKS: their liability to account for fees.

The first ground upon which the correctness of the judgment is questioned by counsel is, that the 1st section of the act of March, 1868, (Acts 1868, p. 54,) did not apply to county clerks, because said section required the statements therein referred to, to be made to the judge or judges of their said courts, and that as the persons composing the county courts are styled in the act creating them, justices of the county court, it was not, therefore, intended to include county clerks. This is, we think, an entire misconception of the section. It is as follows: “The clerks of the several courts established by the constitution or the laws of the State, shall, except as hereinafter provided, at the end of each year during their respective terms of office, deliver to the judge or judges...