State ex rel. Sappington v. American Sur. Co. of New York
| Decision Date | 08 September 1931 |
| Docket Number | 21657 |
| Citation | 41 S.W.2d 966 |
| Parties | STATE ex rel. SAPPINGTON v. AMERICAN SURETY CO. OF NEW YORK et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; James F. Green, Judge.
“ Not to be officially published.”
Action by the State, on the relation of Florence Sappington, against the American Surety Company of New York and another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded, with directions on condition of remittitur; otherwise reversed and remanded for new trial.
Bryan Williams, Cave & McPheeters and Robert N. Hawes, all of St Louis, for appellant American Surety Co.
Bartley & Mayfield, of St. Louis, for appellant Wilfred Jones.
James T. Roberts, of St. Louis, for respondent.
This action was brought by the respondent, plaintiff below, to recover for breach of a notary’s bond under which appellant Wilfred Jones is principal and appellant American Surety Company of New York is surety. The verdict of the jury was for plaintiff, and the jury assessed her damages at $1,600. Defendants in due course appeal.
Plaintiff in her petition alleges that defendant Wilfred Jones was a notary public of the county of St. Louis and entered into his duties as such, and alleges the execution of the bond by the appellant Wilfred Jones, as principal, and the appellant American Surety Company of New York, as surety.
The petition further alleges as a breach of said bond that there was presented to the said Wilfred Jones as notary public, a petition for divorce with affidavit attached, signed by one Bird T. Sappington, and at the same time there was presented to him a paper purporting to be an entry of appearance, signed by respondent, Florence Sappington; that neither said Bird T. Sappington nor said Florence Sappington appeared before the said Wilfred Jones, nor did they subscribe said documents in his presence. Nevertheless said Wilfred Jones falsely and fraudulently certified that the said Bird T. Sappington and said Florence Sappington had subscribed and sworn to said papers before him, and that the said Wilfred Jones attached his notarial seal to said papers. That said petition for divorce and entry of appearance were filed in the circuit court of the county of St. Louis and accepted by said court, relying on the jurat attached to said petition and to said entry of appearance. That the petition and entry of appearance were docketed in said court and set down for trial December 24, 1926; that a default was taken as to defendant, the said Florence Sappington. That a decree of divorce was granted to said Bird T. Sappington divorcing him from the bonds of matrimony and giving him custody of two of the minor children born of the marriage, without Florence Sappington participating in said trial or hearing. That the respondent, Florence Sappington, had no knowledge of said proceedings, and that thereafter said Florence Sappington filed a suit to the May term of the circuit court of the county of St. Louis, seeking to set aside said decree of December 24, 1926, on the ground of fraud in the procurement thereof, said cause being entitled Florence Sappington v. Bird T. Sappington, No. 59607, was docketed, and a trial had on the 16th day of June, 1927. A decree was rendered in said cause in favor of the said Florence Sappington, and the decree of December 24, 1926, was set aside.
Plaintiff alleges that by reason of said false jurat and certificates to said petition of divorce and to said entry of appearance said Bird T. Sappington secured a divorce from plaintiff, and she was deprived of the support of her husband for the space of one year, and suffered damages of $100 a month and was obliged to obligate herself to the sum of $50 for court costs and $350 for attorney’s fees and loss of her own time in conducting said suit to set aside the decree in the sum of $200, all to her damage in the sum of $2,000, for which judgment for the penalty of the bond was prayed, and that the respondent’s (plaintiff below) damage be assessed at $2,000. The answers were general denials.
Plaintiff introduced in evidence a certified copy of the appointment of Wilfred Jones as notary public, with application and bond attached.
Bird T. Sappington testified for plaintiff. He stated that he was the divorced husband of the plaintiff; that he had desired to secure a divorce from plaintiff, and so informed her; that his attorney was Mr. George Heege. Mr. Heege, at his request, had prepared a petition for divorce, which Mr. Heege brought to his home; that he did not remember whether it was read to him by Mr. Heege, and that he signed his name to said petition, but had never appeared before Wilfred Jones to swear to said petition; that the petition had been filed by his attorney, and that he had obtained a divorce. He testified that later on this decree was set aside; that he thereafter filed a new petition for divorce; that his wife filed a cross-bill and obtained a decree of divorce thereon, together with alimony; that he had entered into a property settlement with his wife, in lieu of alimony granted her, and that the judgment for alimony had been satisfied.
Plaintiff testified that she signed the entry of appearance, but that it was signed by her in belief that it was a property settlement; that the petition of divorce had not been read to her. That she did not know her husband was going to obtain a divorce; that she had been deprived of the support of her husband from December 24, 1926, to June 16, 1927, when her husband’s decree was set aside and she was allowed $15 per week for her support and $7 per week for their twelve year old child, and $125 for attorney’s fees, but her husband paid only $125 from December 24, 1926, to January 13, 1928, when she got her divorce on her cross-bill; that the damages she suffered from being deprived of the support of her husband amounted to the sum of $100 a month; that she had paid as attorney’s fees, for having the decree set aside, the sum of $350, the court costs in the sum of $50.
Defendant Wilfred Jones testified that he was a notary public and that it was his signature attached to the certificate of divorce and to the entry of appearance. That Mr. Heege had brought the papers into his office and informed him that Bird T. Sappington and Florence Sappington would come in and swear to them. That he had signed the certificates, but had not attached his seal, and that he did not see them again until this suit was filed. That he did not know who affixed his seal to the entry of appearance and the petition.
J. H. Buermann testified on the part of defendants that he was deputy clerk of the circuit court of St. Louis county; that he had brought with him the files in the cases of Bird T. Sappington v. Florence Sappington, No. 57929; Florence Sappington v. Bird T. Sappington, No. 59607; Bird Sappington v. Florence Sappington, No. 61600; that these files were a part of the records of the circuit court of the county of St. Louis. He testified that he had brought with him copy of the printed rules of the circuit court of the county of St. Louis enacted in 1909, and that these rules were the rules that were in effect in December, 1926.
George Heege testified for the defendants that he was the attorney who represented Bird T. Sappington in the case filed in December, 1926. That he prepared the petition and entry of appearance at the request of Mr. Sappington; that he went to Mr. Sappington’s home in the early part of December, 1926; that he saw Mrs. Sappington and read to Mr. Sappington, in the presence of Mrs. Sappington, the petition for a divorce. That the petition was signed by Mr. Sappington and the entry of appearance signed by Mrs. Sappington. That he took the entry of appearance and petition to Wilfred Jones; that the papers, duly signed and sealed, had been found on Wilfred Jones’ desk, and that he filed them in the circuit court and obtained a divorce for Mr. Sappington.
It is contended that the court erred in failing to instruct the jury, as a matter of law, that the plaintiff was not entitled to recover, in that plaintiff failed to show by a preponderance of the evidence that the alleged breach of duty by the notary was the proximate cause of her injury.
A notarial bond is one of indemnity, and upon a breach thereof the amount of recovery is limited to the amount of the actual loss sustained by the act of the notary, and the liability on the bond extends only to such damages as were the proximate cause of the negligent act. State ex rel. Schaefer v. Korte (Mo. App.) 13 S.W.2d 558; State ex rel. Scruggs v. Packard, 199 Mo.App. 53, 201 S.W. 953.
We note at the outset that, at the time that Sappington filed his suit for divorce against plaintiff in the present action, section 1802, Rev. Stat. of Mo. 1919 (now section 1351, Rev. Stat. of Mo. 1929), among other things, specifically provided that the petition in a divorce action shall be accompanied by an affidavit annexed thereto, that the facts stated therein are true according to the best knowledge and belief of the plaintiff, and that the complaint is not made out of levity or by collusion, fear, or restraint between plaintiff and defendant, for the mere purpose of being separated from each other, but in sincerity and truth for the causes mentioned in the petition; and it has been directly held that such affidavit is jurisdictional and that the absence thereof is fatal to a decree. Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015, 11 L. R. A. (N. S.) 730, 120 Am. St. Rep. 698, 11 Ann. Cas. 794; Stevens v. Stevens, 170 Mo.App. 322, 156 S.W. 68.
In light of this statute and under the facts in the case at hand, even though the plaintiff signed an entry of appearance to the divorce...
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