State ex rel. Sullivan County v. Maryland Cas. Co., 30806.

• Citation: 66 S.W.2d 537
• Decision Date: 11 December 1933
• Docket Number: No. 30806.,30806.
• Parties: STATE OF MISSOURI at the Relation of SULLIVAN COUNTY v. MARYLAND CASUALTY COMPANY, Plaintiff in Error.
• Court: United States State Supreme Court of Missouri

66 S.W.2d 537 STATE OF MISSOURI at the Relation of SULLIVAN COUNTY
v.
MARYLAND CASUALTY COMPANY, Plaintiff in Error. No. 30806. Supreme Court of Missouri. Division One, December 11, 1933.

Writ of Error to Linn Circuit Court. — Hon. Paul Van Osdol, Judge.

AFFIRMED.

Harris & Koontz for plaintiff in error.

(1) The court was in error in rendering judgment for the plaintiff county and against plaintiff in error in any amount, because under the evidence a surety upon the treasurer's bond could not be charged with any defalcation. County of Scott v. John Ring, 29 Minn. 398; Board of County Commissioners v. Knudson, 71 Minn. 461; Governor v. Matlock, 12 N.C. 214; State ex rel. Maries County v. Johnson, 55 Mo. 80; State ex rel. Zimmerman v. Schaper, 152 Mo. App. 538; State of Missouri ex rel. Martin v. Harbridge, 43 Mo. App. 16; Alcorn v. The State, 57 Miss. 273; Cooper v. People, 85 Ill. 417; State v. Felton, 59 Miss. 402; Broad v. Paris, 66 Tex. 119; Commonwealth v. Zachry, 54 Tex. Civ. App. 188; Commonwealth v. Toms, 45 Pa. St. 408. (2) The court erred in rendering judgment for the county and against plaintiff in error in the sum of $21,688.31 because under the evidence, the court was in error in finding any such amount and because the court failed, in fixing such amount, to allow credits to which plaintiff in error was justly entitled, and the court in finding such amount took into consideration amounts of monies charged against the treasurer when there was no evidence to show that such amounts had ever been in the possession of Matkins as treasurer. County of Scott v. John Ring, 29 Minn. 398; Board of County Commissioners v. Knudson, 71 Minn. 461; Governor v. Matlock, 12 N.C. 214; State ex rel. Maries County v. Johnson, 55 Mo. 80; State ex rel. Zimmerman v. Schaper, 152 Mo. App. 538; State of Missouri ex rel. Martin v. Harbridge, 43 Mo. App. 16; Alcorn v. The State, 57 Miss. 273; Cooper v. People, 85 Ill. 417; State v. Felton, 59 Miss. 402; Broad v. Paris, 66 Tex. 119; Commonwealth v. Zachry, 54 Tex. Civ. App. 188; Commonwealth v. Toms, 45 Pa. St. 408.

E.M. Harber, P.M. Marr, L.E. Atherton and M.D. Campbell for defendant in error.

(1) There being no claim of error in the record proper, and matters of exception not being before this court, the purported bill of exceptions being a nullity, there is nothing before this court to consider under the writ of error, which is a new action. Secs. 1008, 1009, R.S. 1929; State v. Bennett, 6 S.W. (2d) 88; Turner v. Edmonston, 210 Mo. 411; Macklin v. Allenburg, 100 Mo. 337; Barber v. Young, 68 S.W. 107. (2) The special finding of facts set out in the purported bill of exceptions was not requested by any party to the suit, has no place herein, and will be ignored by this court. Kansas City v. Boyer, 202 S.W. 1086; State ex rel. Ward v. Trimble, 39 S.W. (2d) 372. (3) There being only a general judgment for defendant in error, it must be sustained if there is any evidence to support it. Kansas City v. Boyer, 202 S.W. 1086; McEvoy v. Lane, 9 Mo. 48; State ex rel. Ward v. Trimble, 39 S.W. (2d) 372. (4) All of the evidence not being brought up by plaintiff in error, this court will not say there was no evidence to support the judgment. Reed v. Peck, 163 Mo. 333. (5) By mixing and commingling all funds in his account as treasurer, Matkins became liable on his bond as treasurer. State ex rel. Dunklin Co. v. Blakemore, 275 Mo. 695, 205 S.W. 626; State v. Adams, 172 Mo. 1; State v. McDaniel, 59 S.W. 451; 15 C.J., p. 522, secs. 199, 200. (6) After showing of commingling of funds, burden passed to Matkins to make explanation, which he did not do, though present at trial, and matter was within his special knowledge. State ex rel. Dunklin County v. Blakemore, 275 Mo. 695, 205 S.W. 626; Cuthbert v. Holmes, 14 S.W. (2d) 444; Fulwilder v. Power Co., 116 S.W. 508, 216 Mo. 582; State v. Matkins, 34 S.W. (2d) 1; Dunkeson v. Williams, 242 S.W. 658; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261. (7) Whatever estops the principal estops the surety. State ex rel. Dunklin County v. Blakemore, 275 Mo. 695, 205 S.W. 626; Union State Bank v. Am. Surety Co., 23 S.W. (2d) 1038. (8) Matkins, being indebted to the county and paying it a sum less than the total due, and making no application of the payment to particular funds, authorized the county to apply the payment as it deemed best, and the bringing of the suit on the treasurer's bond was an application of the payment to his indebtedness, if any, to all funds other than those covered by the treasurer's bond sued on. State ex rel. Dunklin County v. Blakemore, 275 Mo. 695, 205 S.W. 626; Henry County v. Salmon, 201 Mo. 136; Goetz v. Piel, 26 Mo. App. 641; Haynes v. Waite, 14 Cal. 446; State v. McDaniel, 59 S.W. 451. (9) Plaintiff in error is bound by Matkins' books and records and what he charged himself with, and by his admissions. Clark Co. v. Hayman, 142 Mo. 430; Father Matthews Society v. Fitzwilliam, 84 Mo. 406; St. Louis v. Foster, 24 Mo. 141. (10) The trial court allowed Matkins every credit to which he was entitled, and more too...