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

• Decision Date: 11 December 1933
• Citation: 66 S.W.2d 537,334 Mo. 259
• Parties: State of Missouri at the Relation of Sullivan County v. Maryland Casualty Company, Plaintiff in Error
• Court: Missouri Supreme Court

66 S.W.2d 537

334 Mo. 259

State of Missouri at the Relation of Sullivan County v. Maryland Casualty Company, Plaintiff in Error

Supreme Court of Missouri

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. Secs. 9541, 9543, 9544, R. S. 1919; Morrow v. Surber, 97 Mo. 155; State ex rel. Vernon County v. King, 136 Mo. 309; Secs. 9500, 13083, 13084, R. S. 1919; State ex rel. Dunklin County v. Blakemore, 275 Mo. 695, 205 S.W. 626; Sec. 3342, R. S. 1919. (11) Accountant Craig's report was admissible. Masonic Mut. Ben. Soc. v. Lackland, 97 Mo. 137; State v. Matkins, 34 S.W.2d 1.

OPINION

Gantt, J.

Action against Wm. A. Matkins and the Maryland Casualty Company on the bond given by Matkins as treasurer of Sullivan County.

In substance, the petition alleged the election of Matkins as said treasurer on November 4, 1924; that he duly qualified and was commissioned on May 1, 1925; that the Maryland Casualty Company was incorporated under the laws of Maryland; that it was authorized to become surety on bonds in Missouri for hire; that on September 29, 1925, Matkins, as principal, and the casualty company, as surety, executed an official bond for $ 120,000 payable to the State and conditioned upon the faithful performance by Matkins of his duties as treasurer of said county; that said bond became effective about October 1, 1925, and was in full force and effect at all times herein mentioned; that Matkins continued in the discharge of his duties as treasurer and ex officio collector of said county, under township organization, until July 12, 1928, at which time he resigned as treasurer of said county; that between October 1, 1925, and July 12, 1928, Matkins collected and received large sums of money due the State, county and various subdivisions thereof; that he commingled the taxes, funds and amounts collected by him as treasurer and ex officio collector and did not keep said sums separated into specific funds as required by law; that he failed to account to the State, county and subdivisions thereof for all funds collected by him, and failed to pay orders, warrants and demands legally drawn against money under his control as such officer; that he misappropriated said funds so received by him between said dates to the amount of $ 24,112.91, and failed and refused to account to the State, county and subdivisions thereof for said sums of money; that the casualty company was duly notified of said misapproriation, and demand was made for said sum; that it neglected to comply with said demand, and did so without lawful excuse. Wherefore, relator prayed judgment for $ 120,000, to be satisfied upon payment of $ 31,525.30, which included interest on $ 24,113.91 from July 12, 1928, with penalty and attorneys fee for vexatious refusal of the casualty company to pay the State, county and subdivisions thereof the funds misappropriated.

The answer of the casualty company admitted that Matkins was the duly qualified and commissioned treasurer of Sullivan County; that said company was incorporated under the laws of Maryland and duly authorized to become surety on bonds in this State for hire; that said company duly executed the bond sued upon, all as alleged in the petition, and further answering denied each and every other allegation in the petition. The defendant Matkins did not answer.

The cause was tried to the court without a jury, no declarations of law were requested or given, and the court made no finding of fact at the request of a party to the suit. It found for defendants on the issue of vexatious delay and for plaintiff on the merits for $ 120,000, to be satisfied upon the payment of $ 21,688.31, with interest at six per cent from July 12, 1928, and for costs. Judgment was entered accordingly.

The record is here on writ of error sued out by the defendants. Thereafter Matkins abandoned the proceeding in this court, and as to him the writ is dismissed.

On its own motion, the court made a special finding of fact. The finding has no place in the record and must be ignored in determining the questions presented on this review. [Kansas City v. Boyer, 202 S.W. 1086; State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372.]

I. Defendant company contends that the judgment is not supported by substantial evidence.

There was evidence tending to show the following: In July, 1928, the county clerk, his deputy, a bank official and Matkins examined the records and books of Matkins, as said official, to determine conditions since his last report to the county court, as treasurer, on April 30, 1928. The examination disclosed a shortage of about $ 18,700. At that time Matkins said, "The shortage shouldn't be that much."

Thereafter an accountant, admitted to be an expert, with an assistant working under his supervision, made an audit of the official records of Matkins. In doing so he examined, among other records connected with and incidental to said office, the records of the official...