State ex rel. Worth Cnty. v. Patton

• Decision Date: 31 August 1868
• Citation: 42 Mo. 530
• Parties: STATE OF MISSOURI, TO USE OF WORTH COUNTY, Appellant, v. JOHN PATTON et al., Respondents.
• Court: Missouri Supreme Court

42 Mo. 530

STATE OF MISSOURI, TO USE OF WORTH COUNTY, Appellant,

v.JOHN PATTON et al., Respondents.

Supreme Court of Missouri.

August Term, 1868.

Appeal from Worth Circuit Court.

Plaintiff's petition was as follows: “The State, to the use of Worth county, against John Patton, John A. Fanning, F. M. Bowlin, James E. Cadle, Laban G. Janes, Daniel Cox, Elias G. Weigart, and Eli Smith. In the Circuit Court for Worth county, April term, 1866. Now comes the plaintiff, by her attorney, who prosecutes this cause in the name and relation of the State of Missouri to the use of Worth county, and for this her second amended petition states: That John Patton, on the 28th day of March, A. D. 1861, was sheriff of Worth county, in the State of Missouri, and ex-officio collector of the revenue of said county; and that the said John Patton, as collector of the revenue of said county of Worth, on the 28th day of March, A. D. 1861, executed his official bond as said collector to the said State of Missouri.”

The petition then recites the substance of the bond, and proceeds as follows: “Plaintiff further states that said Patton, as collector for the county of Worth, received the tax-books for the year 1862, for said county of Worth, and was charged with the amount of $1,549.57 taxes thereon; and that said Patton, as collector of the revenue of said county, between the 28th day of March, 1861, and May the 1st, 1862, collected on said tax-book the State and county revenue of said county, to the amount of $337.36, as shown by a settlement with the County Court of said county, by his deputy, F. M. Bowlin, at the June term of said court, 1862; also, the sum of $70 collected on dramshop licenses, and ____ dollars on merchants' licenses, said sums not in said settlement, amounting in all to the sum of $407.36 collected of the State and county revenue on said tax-book more than he, the said John Patton, collector as aforesaid, has paid over to said State and county or otherwise accounted for; and that the said Patton, as collector of said county, has wholly failed to punctually pay over or account for the sum of $407.36 revenue collected by him and now due the plaintiff, according to the obligations of his said bond as said collector, by reason whereof said plaintiff says she is damaged to the amount of five hundred dollars; wherefore plaintiff prays judgment, etc.”

Asper & Collins, for appellant.

I. The second and third points in the demurrer raise the objection that the form of the suit, as to parties, is not sufficient, because it does not state that the suit is brought “at the relation and for the use of Worth county.” This is stated in the body of the petition, and is sufficient. (Harney v. Dutcher, 15 Mo. 91; Duncan v. Duncan, 19 Mo. 369; Myers v. Christy, 21 Mo. 112;Gen. Stat. 1865, p 605, § 15.) The caption of the suit is immaterial, provided the parties are properly stated in the body of the petition. (Beattie v. Lett, 28 Mo. 596.) If it appears in the petition who the relator or beneficiary is, it is sufficient. (State to use of Young v. Hesselmeyer, 34 Mo. 76; State to use of J. D. Tapley's Adm'r v. Matson, 38 Mo. 489; State to use of Dehaven et al. v. Davis, 35 Mo. 406.) The character in which plaintiff sues is traversable--made so in this case. (1 Smith's Pr. 367.)

II. All that part of the petition which relates to State revenue could have been stricken out on motion, but cannot be reached on general demurrer. It must be regarded as mere surplusage. (Garner v. H. & St. Jo. R.R. Co., 34 Mo. 235; 1 Van Sand. Pl. 174, 366, 369, 371; 1 Chit. Pl. 229; 1 Smith's Pr. 365-6.) A demurrer is proper only when an entire pleading is defective; here a good breach is assigned, and therefore it is no ground of demurrer. (2 Sandf. 702; 6 How. Pr. 365; Peabody v. Washington Ins. Co., 20 Barb. 342; 17 How. Pr. 57; Butler v. Wood, 10 How. Pr. 222; State to use, etc., v. Cameron, 12 Mo. 378; State to use, etc., v. Davis, 35 Mo. 406.)

Ensworth, for respondents.

I. The defendant is charged with collections on tax-book for 1862, between the 28th of March, 1861, and 1st of May, 1862. Sess. Acts of 1860-61, title ““Revenue,” p. 69, §§ 42, 47, show that the tax-book of 1862 could not come into the collector's hands until May 1st, 1862, and the tax for that year could not have been levied at the time stated in the petition.

II. The petition does not show what State it is that sues. The averment in the body of the petition, that it is the State of Missouri, is not in compliance with the statute regulating practice in courts. § 3 Gen. Stat. 1865, chap. 165, p. 658, says: The title must of itself show the parties. If judgment had been rendered upon the petition for plaintiff, it could not be sustained, although the court might overrule the demurrer. (27 Mo. 167; 30 Mo. 142, 144.)FAGG, Judge, delivered the opinion of the court.

This suit was instituted in the Circuit Court of Worth county, against the respondents, upon the official bond of John Patton, collector of that county, for a failure to pay over certain moneys...