State ex rel. School Dist. of St. Joseph v. Wells

• Decision Date: 12 July 1954
• Docket Number: 43628,No. 2,Nos. 43627,s. 43627,2
• Citation: 270 S.W.2d 857
• Parties: STATE ex rel. SCHOOL DIST. OF ST. JOSEPH v. WELLS et al. STATE ex rel. and to Use of BUCHANAN COUNTY v. WELLS et al
• Court: Missouri Supreme Court

Page 857

270 S.W.2d 857

STATE ex rel. SCHOOL DIST. OF ST. JOSEPH v. WELLS et al.

STATE ex rel. and to Use of BUCHANAN COUNTY v. WELLS et al.

Nos. 43627, 43628.

Supreme Court of Missouri, Division No. 2.

July 12, 1954.

Motion for Rehearing or to Modify Opinion Denied Sept. 13,

1954, in No. 43,627.

Alva F. Lindsay, St. Joseph, for appellant State ex rel. School Dist. of St. Joseph.

John E. Downs, Pros. Atty., Gordon C. Shaffer, Jr., Asst. Pros. Atty., Frank Connett, Jr., St. Joseph, for appellant State ex rel. and to use of Buchanan County.

Brown, Douglas & Brown, R. L. Douglas, St. Joseph, for respondents.

LEEDY, Judge.

These companion cases were consolidated for argument, and will be disposed of in a single opinion. Both grow out of the same facts, their procedural steps were exactly alike, and the ultimate question in each case is the same, i. e., whether the actions are barred by limitations. They were brought in the name of the State of Missouri, one at the relation of Buchanan County and the other at the relation of the School District of St. Joseph, against Jim Wells, former Collector of the Revenue of Buchanan County, and the surety on his official bond, The National Surety Corporation, to recover the full penalty thereof, $100,000, the amount of alleged defalcations on the part of Wells occurring during his term of office as collector, 1935-1939.

On February 27, 1943, four years (lacking one week) after Wells' term of office had expired, relators (appellants) instituted these actions by filing their petitions. The transcript is silent as to any further steps in the litigation until eight years and nine months later when, on November 23, 1951, they filed identical amended petitions. In due time defendant surety (respondent here), by motions to dismiss, or, in the alternative, to make more definite and certain, attacked the sufficiency of the amended petitions. Upon the sustention of the motions to dismiss (on the ground thereof that the actions were barred by limitations), and plaintiffs declining to plead further, the court entered judgment of dismissal in each case, and plaintiffs appealed.

While our disposition of this case has not been influenced by the want of numbering of the paragraphs averring plaintiffs' claims, we do remind that the requirement of the statute in that regard, Section 509.120 RSMo 1949, V.A.M.S., has a definite and useful purpose, and compliance in this instance would have facilitated our consideration and statement of the contentions, pro and con, touching the sufficiency of certain of the averments. The petitions are duplicates, so for convenience in hereinafter referring to them, the singular number will be used.

The petition alleges the official position and status of Wells as Collector of Buchanan County for a term beginning in March, 1935, and ending in March, 1939, and the due execution, filing, approval and recordation of the bond sued on, the condition of which was [as provided by RSMo '29, Sec. 9939] that if Wells 'shall faithfully and punctually collect and pay over all state, county and other revenue for the four years next ensuing the first day of March, 1935, and in all things faithfully perform all the duties of his said office of Collector according to law, then this bond to be void; otherwise to remain in full force and effect.'

The petition then alleges that 'during his said term,' Wells was 'guilty of breaches of said bond as hereinafter set out;' that as said collector, he 'collected and received for an on account of the relator and upon the tax books and delinquent tax lists placed in his hands for collection sums of money due and owing to the relator in the amount of One Hundred Thousand Dollars ($100,000.00), which said sums were collected from sundry persons and taxpayers,' which sums he failed and refused, and still fails and refuses to pay over to relator as required by law. It is then alleged tha tWells falsely and fraudulently returned as unpaid the taxes so collected by him, and that he collected, and wrongfully and unlawfully retained for his own use and benefit said tax moneys and other moneys in the amount of One Hundred Thousand Dollars ($100,000) due and owing to relator, as aforesaid.

We now set out verbatim those allegations of the petition the sufficiency of which to avoid the bar of the statute is the determinative question:

'Relator further states that the defendant, Jim Wells, unlawfully and wrongfully and fraudulently failed and neglected to make proper entries and records in the books and records of his office concerning said sums of money collected by him as aforesaid; and unlawfully, wrongfully and fraudulently made false entries and records in the books and records of his office concerning said sums of money collected by him as aforesaid; and that as a result of said failure and neglect to make proper entries and records, and as a result of said false entries and records, an examination of the books and records of his office would not reveal the true amount of taxes and revenues collected by him, and would not reveal the fact that said defendant, Jim Wells, has failed to account for an pay over according ot law said sum of One Hundred Thousand Dollars ($100,000).

'The relator further states that the defendant, Jim Wells, by the manner and method in which he conducted his office and kept his official records fraudulently and wrongfully concealed the fact that he had in truth and fact collected said sum of One Hundred Thousand Dollars ($100,000) as aforesaid, and has failed to account for and pay over to the relator said sum at the times and in the manner required by law.

'The relator further states that a true, correct and complete copy of the annual settlements, and each of them, made by Jim Wells, County Collector of Buchanan County, Missouri, are attached hereto and made a part of this petition. (Exhibit--Annual Settlements--filed separately.) That said annual settlements, and each of them, were regularly and duly filed with the County Court of Buchanan County, Missouri, and were by said Court duly examined, the contents thereof discussed with the said County Collector, and after due consideration and investigation by the said County Court, said settlements were approved. That said reports appeared in all manner and respect to be true and correct and the amounts collected and to be collected balanced with the tax collection records of said county. Said annual settlements, and each of them, did appear to account for all sums of money collected and to be collected by said County Collector of Buchanan County, Missouri, Jim Wells.

'The relator further states that the official settlements and reports which the defendant, Jim Wells, made to the County Court of Buchanan County, Missouri, during his said term of office including his annual settlements and each of them herein above mentioned, were false, untrue and fraudulently made an did not account for said sums of money collected as aforesaid, and concealed the fact that said sums had been collected and should be paid over and accounted for.'

The petition then averred 'that by reason of the foregoing the defendants had become liable to the State of Missouri for the use of the relator for the sum of One Hundred Thousand Dollars as damages,' and that plaintiff is entitled to receive and recover 6% interest thereon 'from the date of the expiration of his [Wells'] term of office.' The prayer was for judgment against defendants for the full penalty of the bond, $100,000, and that plaintiff have execution for that sum together with 6% interest thereon from the ___ day of March, 1939.

It is conceded that the action would normally be barred under the applicable statute of limitations, Section 516.130(1) RSMo 1949, V.A.M.S. (prescribing a three-year period). But plaintiffs rely upon concealment of the cause of action by Wells as tolling the statute, and the case turns upon the sufficiency of the quoted allegations of the petition to raise that issue. We do not pause to determine the surety's contention that the petition is fatally defective under Section 522.200 RSMo 1949, V.A.M.S., for failure to assign the specific breaches for which the action is brought. For present purposes, it will be assumed that the petition is good in that regard, and it will be further assumed that, apart from avoidance of the bar of the statute, it otherwise states a claim upon which relief can be granted.

The respondent surety's position is that the allegations of the petition are insufficient to toll the running of the statute for the reason it appears from the face of the petition and the accompanying exhibits (photostatic copies of the collector's annual settlements) that neither the collector's annual settlements nor the county court's action thereon were in conformity with the governing statute, Sec. 9918, RSMo 1929 (now Section 139.160, RSMo 1949, V.A.M.S.), in consequence of which the petition can be said to show nothing more than inexcusable ignorance on the part of the county court with respect to the truth or falsity of the collector's settlements, and negligent inaction by it. While the general and sweeping complaint is made that the settlements 'are not and do not purport to be the kind of settlements the statute requires the collector to make, and also requires the county court to exact of the collector,' no deficiency in the form of the settlements, as made, is pointed out or relied on other than the admitted failure of the collector, in connection with his...