State ex rel. Maries Cnty. v. Johnson
Decision Date | 31 January 1874 |
Citation | 55 Mo. 80 |
Parties | STATE to use of MARIES COUNTY, Respondent, v. SAMUEL JOHNSON, et al., Appellants. |
Court | Missouri Supreme Court |
Appeal from Maries Circuit Court.
Lay & Belch, for Appellants.
I. Defendants were in no wise liable for any default or failure of their principal to pay over school monies. The treasurer must give a separate bond for that. (Wagn. Stat., 1251, § 42.)
P. J. Seay, for Respondent.
I. Section 5, p. 410, Wagn. Stat., 1870, provides that the treasurer shall give bond to the county “for the faithful performance of the duties of his office.” One of his duties of his office is to receive and pay over school monies, and for failure to do this he is liable on his bond. It is true, that a separate bond is required, but suppose it is not given. He gets the school monies on the faith and credit, that the bond which he has given will secure the payment of any monies which he may fail to pay over. The apparent object of the legislature, in requiring an addition bond to be given as a security for school monies, was not to relieve the sureties who go upon the first bond, but to make the assurance greater that no loss should come to the school fund, a fund which is, and should be, regarded by the legislature and the courts as the most sacred.
II. But if the bond should be held insufficient under the statute, it was good at common law. (State vs. Thomas, 17 Mo., 503.)
III. See generally Western Boatmen's Ben. Association vs. Kribben, 48 Mo., 37.
This was an action on the official bond of Samuel Johnson as treasurer proper of Maries county. The action was commenced against Johnson and his sureties in Maries county, and taken by change of venue to Osage County. No service was had upon Johnson, who was a non-resident of the State.
The petition charged breaches of the bond in not accounting for, and paying over to his successor in office, county and township school funds. The answers of the defendants set up the defense that there was no default under this bond; that they were not liable on the bond for a default in school monies. The bond was given in 1867. The evidence showed no default at all on account of monies belonging to the county. The only default known was in not accounting for school monies held by him as treasurer for school purposes, belonging to the school townships.
The case was submitted to a jury, and the defendants asked an instruction demurring to the evidence, which the court refused. The court also gave an instruction to the effect, that, if the jury find from the evidence that the treasurer was in default for school monies, it was a breach of his bond and entitled the plaintiff to recover. The jury found for the plaintiff, and a motion for a new trial was overruled, and final judgment entered on the verdict for the plaintiff.
This case is governed by the General Statutes of 1865, which however in reference to the points involved are the same as the existing statutes.
The county treasurer proper, under § 5 Genl. Stat., 1865, p. 226, was required within ten days after his election or appointment to enter into a bond to the county, in a sum not less than twenty thousand dollars to be fixed by the County Court, with such sureties resident house-holders as...
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