State ex rel. Saline Cnty. v. Sappington

• Decision Date: 30 April 1878
• Citation: 67 Mo. 529
• Parties: THE STATE ex rel. SALINE COUNTY v. SAPPINGTON et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

67 Mo. 529

THE STATE ex rel. SALINE COUNTY

v.SAPPINGTON et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1878.

Error to Saline Circuit Court.--HON. WILLIAM T. WOOD, Judge.

Yerby & Vance and Sam'l Boyd for plaintiffs in error, cited Wag. Stat., 410, § 5; 1305, §§ 23, 24, 25; 2 Black. Com., (19 Ed.) 85; State ex rel. v. Clarke Co. Ct., 41 Mo. 44; Sheeley v. Wiggs, 32 Mo. 398; Smith v. Haworth, 53 Mo. 88; Schell v. Leland, 45 Mo. 289; Jefferson Co. v. Cowan, 54 Mo. 234; U. S. v. Tingey, 5 Peters 115; Robards v. Samuel, 17 Mo. 555; Cooke v._______, Freeman's Ch. (Eng.) 97 Craythorne v. Swinburne, 14 Ves. 160; Armitage v. Pulver, 37 N. Y. 494; 1 Story Eq. Jur., § 498; Stull v. Hance, 62 Ill. 52; Coope v. Twynam, 1 Turner & Russell 426; Deringv. Lord Winchelsea, 1 White & Tud. Lead. Cas. in Eq. 85.

Thomas Shackelford for defendant in error, cited Moore's Admr. v. Williams, 61 Mo. 63; Gathwright v. Callaway Co., 10 Mo. 663.

HOUGH, J.

The defendant, Barnabas Sappington, was elected treasurer of Saline county in 1868, gave bond in the sum of $20,000, and, no successor having been elected and qualified, continued in office until January 1st, 1874, when he resigned, and a successor was appointed by the county court, who was duly qualified. On the 4th of April, 1871, the county court, for what reason does not appear from the record, required him to give additional bonds as such treasurer, in the sum of $10,000 for school funds and $10,000 for county funds; the bond, which is the foundation of the present action, recites that it was given in pursuance of the foregoing order. It is dated April 7th, 1871, is for the sum of $10,000, and concludes as follows: “Now if the said Barnabas Sappington, treasurer as aforesaid, shall well and truly perform all the duties of said office, until his successor is duly elected and qualified, and pay over to him the amount in his hands by order of the county court, then this bond to be void, otherwise to remain in full force.” On a final settlement made by Sappington in January, 1874, it appeared that he was, at that time, chargeable, as treasurer, with the sum of $2,827.14 which he was ordered to pay over to his successor in office. With this order he failed to comply. The testimony tended to show that a deficit in his accounts occurred after the bond in suit was given. The following instruction was given by the court at the instance of the plaintiff: “If the court finds from the evidence, that at the time of the filing and approval of the writing obligatory sued on by the county court, if defendant Sappington was the treasurer of Saline county; that prior to said time no deficit had occurred in said Sappington's accounts as treasurer, and that the deficit with which he is charged in this suit had not occurred previous to that time; that Sappington continued to act as treasurer after said writing was approved by the court, without a successor being duly qualified, until January 19th, 1874, when Martin took possession of the office as his successor; that he resigned the office and made a final settlement, and that by said settlement a balance was found to be in his hands belonging to the county revenue, which he was ordered to pay over to his said successor; that he has failed to comply with that order although duly notified of it, and that there is a balance still due by said Sappington, as treasurer, to the county revenue, then the court will find for plaintiff and assess the damages at the sum found to be due by said Sappington, and interest from the date of his final settlement; the damages not to exceed the amount claimed in the petition.”

The following instructions asked by the defendants were refused: “The court declares the law to be that the only authority given by statute to the county court, which would warrant the said court in accepting a new bond, or any additional bond, from a county treasurer who has given the bond required by law, must operate as a discharge of the securities in the old bond; and, in order to do this, must be in strict conformity to the statutes, and unless the former sureties are released, the new or additional bond is void.” “The court declares the law to be that no money can be drawn out of the county treasurer's hands, except by warrants drawn by order of the county court, and it devolves upon the plaintiff to show that the treasurer, Sappington, has refused to pay such warrants before she can recover against the securities in this action.” “The court declares the law to be that the county court is created by statute, and its powers confined to the authority given it by statute, and had, under the law, no power either to require or accept from defendants any bond, except such as is authorized directly by the statutes, and if the record of the county court does not show that the order requiring defendant, Sappington, to give a new bond was made in pursuance of sections _____ of...