State ex rel. Reid v. Griffith
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 545 |
| Parties | STATE ex rel. JOHN REID, Respondent, v. B. F. GRIFFITH, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.
A. Green, for Appellants, cited in argument Wagn. Stat., 1058, § 3; 1347, §§ 1, 2.
Wallace & Chiles, with Ryland & Ryland, for Respondent, cited: State vs. Fenby, 18 Mo. 445-47; Funkhouser vs. How, 18 Mo. 47-49; Reid vs. Piedmont, 58 Mo. 421; Nordmanser vs. Hitchcock, 40 Mo. 181; Stout vs. Colver, 6 Mo. 254; Steigers vs. Darby, 8 Mo. 679; Jacob vs. McLean, 24 Mo. 40; Jones vs. St. Joe. F. & M. Ins. Co., 55 Mo. 342; Brolaski vs. Putnam, 34 Mo. 459; Brainard vs. Van Kuran, 22 Iowa, 266; Meecher vs. Judy, 4 Mo. 361; Elliott vs. Leak, Id. 540; Green vs. Goodloe, 7 Mo. 25; Faber vs. Bruner, 13 Mo. 541; Campbell vs. Gaston, 29 Mo. 343.
This is a suit instituted in the court of common pleas of Johnson county by plaintiff, on the official bond of defendant (Griffith) as sheriff and his securities.
The petition substantially alleges that in January, 1861, William H. Russell conveyed by deed of trust to Eugene B. Allen, as trustee, about four thousand acres of land in Johnson county to secure the payment of the sum of $7,583.55 and interest, and divers other debts mentioned in said deed; that the above debt due to the Farmers' Bank, was afterwards for value transferred to relator, Reid; that it was provided in said deed that if the whole or any part of the debts mentioned therein should remain unpaid, said trustee should proceed to sell the real estate, and after the payment of the costs and expenses of said sale to apply the proceeds to the payment of the debts mentioned in the deed, and to divide the same pro rata if not sufficient to pay all; that Russell failed to pay the debt to the Farmers' Bank; that defendant (Griffith) was elected sheriff of Johnson county in November, 1868, for two years, and as such executed bond, with his co-defendants as securities, conditioned for the faithful performance of his duties as such sheriff; that at the March term of the court of common pleas of Johnson county it was ordered, on proceedings instituted for that purpose, that Eugene B. Allen, the trustee, be removed, and that the sheriff of Johnson county be appointed trustee to sell the land and carry into effect the provisions of said deed; that said defendant (Griffith) was the sheriff of Johnson county, and as such under said order proceeded to sell the real estate described in said deed of trust, from which there was realized, after deducting costs and expenses of sale, the sum of $4,251.85, which was received by defendant (Griffith), in virtue of and by color of his office; that the relator's debt amounted at the time of the sale to $11,236.24, and that his pro rata proportion of the net proceeds of said sale amounted to $889.66, which the said defendant (Griffith) failed to pay over to relator or any one for him. The petition alleged proper breaches of the bond, and asked judgment thereon.
The separate answer of the defendant (Griffith) admits the execution of the deed of trust, and that the debt to the Farmers' Bank was one of the debts provided for, but denies that it was transferred to relator. It also admits that he was elected sheriff, gave bond and was appointed trustee by the court of common pleas of Johnson county to sell the land, and at the time of his appointment was sheriff, and that as such trustee he sold the land, and that the net proceeds of the sale amounted to $4,251.85; denies that it came into his hands as sheriff, and alleges that out of the proceeds of the said sale he did pay to the Farmers' Bank, or her legally authorized attorney $1,238.64, which was the full pro rata part of her said claim, without notice of assignment to relator or knowledge of his claim; denies the alleged breaches of his bond, or that relator ever made demand for payment.
The other defendants, the sureties on the bond, denied by answer all the allegations of the petition.
The cause was removed by change of venue to Jackson county, in the circuit court of which county plaintiff filed replication denying new matter in defendant's (Griffith's) answer. The suit was dismissed by plaintiff in that court, as to all the defendants except defendant Griffith, and was tried by the court without a jury, and judgment rendered for the penalty of the bond, and relator's damages assessed at $1,118.73.
Defendant filed his motion for a new trial, with affidavits in support of same, which was overruled by the court, and from which defendant appeals.
Defendant asked for a reversal of the judgment on the ground that the petition does not state a cause of action, and is not sufficient to support the judgment, and on the further ground that the court below erred in refusing to grant a new trial on the evidence offered in support of the same.
It is said by defendant's counsel that inasmuch as no objection was made to the sufficiency of the petition in the court below, it should not be considered here. This court has decided that when an error appears on the face of the record, which is the petition, summons, and all subsequent pleadings, including verdict and judgment, that it will consider it, although no exceptions may have been taken to it in the court below. (Bateson vs. Clark, 37 Mo. 31.)
The objection urged to the sufficiency of the petition is, that it alleges that the court of common pleas of Johnson county, by its order removed Allen, the trustee in the deed, and appointed the sheriff of Johnson county in his stead to execute the deed of trust, when such court had no legal authority to make such appointment.
The statute authorizing the appointment of a trustee provides that when a trustee in any deed of trust to secure the payment of a debt shall remove, or has removed out of the State, or neglects or refuses to act, or becomes unable by sickness or other disability to execute the trust, any person interested (Wagn. Stat. 1347, §§ 1, 2.)
The act creating the court of common pleas in Johnson county provides that “said court shall have concurrent jurisdiction with the circuit court in all civil actions.” (Acts 1867, p. 90, § 10.)
It is evident that the legislature intended to confer, and did confer, by said act upon said court jurisdiction over any and all civil proceedings of...
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...446, 448 (Mo.1904), overruled on other grounds, State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916 (1925). State ex rel. Reid v. Griffith, 63 Mo. 545, 551 (1876). "[The trial court's] decision on the issue should be disturbed only if there is a showing of great abuse of its discreti......
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... ... filed before the justice did not state any fact upon which a ... judgment could be based against it; whereupon ... Railroad, 79 Mo. 196; Peltz v ... Eichele, 62 Mo. 171; State ex rel. v. Griffith, ... 63 Mo. 545; Bateson v. Clark, 37 Mo. 31 ... ...
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