State v. Brown

• Decision Date: 24 December 1907
• Citation: 208 Mo. 613,106 S.W. 630
• Parties: STATE ex rel. ENTERPRISE MILLING CO. v. BROWN et al.
• Court: Missouri Supreme Court

106 S.W. 630

208 Mo. 613

STATE ex rel. ENTERPRISE MILLING CO. v. BROWN et al.

Supreme Court of Missouri, Division No. 2.

December 24, 1907.

LIMITATION OF ACTIONS — LIMITATION APPLICABLE — ACTION ON ATTACHMENT BOND.

The conditions of an attachment bond being "to refund all sums of money that may be adjudged to be refunded * * * and pay all damages and costs that may accrue * * * under the attachment," an action on the bond is within Rev. St. 1899, § 4272 [Ann. St. 1906, p. 2347], providing that an action upon any writing, whether sealed or unsealed, for the payment of money or property, may be brought within 10 years after the cause of action shall accrue.

Appeal from Circuit Court, Pettis County; Jas. E. Hazell, Special Judge.

Action by the state, on the relation of the Enterprise Milling Company, against Edward F. Brown, as receiver of the First National Bank of Sedalia, Mo., and another. From a judgment for defendants, plaintiff appealed. Reversed and remanded.

H. T. Williams and Wm. D. Steele, for appellant. Robert F. Walker, for respondents.

BURGESS, J.

This is a suit upon an attachment bond for $52,000, which bond had been executed and filed by defendants in the circuit court of Pettis county on the 8th day of May, 1894, and this suit was instituted in said circuit court by plaintiff against the defendants on the 3d day of October, 1903. The defendants interposed a demurrer to the petition filed by plaintiff; the grounds whereof being: First, that said petition did not state facts sufficient to constitute a cause of action; and, second, that it showed upon its face that the cause of action therein attempted to be alleged was barred by the statute of limitations. On a hearing on said demurrer at the December term, 1904, of said court, the same was sustained. Plaintiff excepted to the action of the court in sustaining the demurrer, elected to stand upon its petition, and refused to plead further. Thereupon the court rendered judgment in favor of defendants and against plaintiff for costs, and plaintiff appealed.

It is the contention of defendants that the cause of action was barred by the 5 years' statute of limitations, and that the 10 years' statute of limitations does not apply. Section 4272, Rev. St. 1899 [Ann. St. 1906, p. 2347], provides that an action upon any writing, whether sealed or unsealed, for the payment of money or property, may be brought within 10 years after the cause of action shall accrue. Section 4273, Rev. St. 1899 [Ann. St. 1906, p. 2349], provides that actions may be brought within five years from the time the cause of action accrues upon contracts, obligations, or liabilities, express or implied, except those mentioned in section 4272, and except upon judgments or decrees of a court of record, and except where a different time is by statute limited. It has been uniformly rule by the Supreme Court that an action upon an administrator's bond may be brought within 10 years from the date of the accruing of the cause of action. State, to Use, v. Pratte, 8 Mo. 286, 40 Am. Dec. 140; Martin v. Knapp, 45 Mo. 48; Nelson v. Barnett, 123 Mo. 564, 27 S. W. 520. In Henoch v. Chaney, 61 Mo. 129, where the action was upon an instrument in the nature of a replevin bond taken by a special constable in a suit before a justice of the peace, the same rule was applied. It is, however, due the distinguished judge who wrote that opinion to say that, in the concluding paragraph thereof, he observed: "In the case at bar, over five years had intervened between the accruing of the right of action and the institution of suit, and, were the question an open one, we might not be able to yield assent to the idea that 10 years, instead of 5, is the statutory bar applicable to the case before us. But regarding the point as settled in the case of Martin v. Knapp, 45 Mo. 48, the conclusion there reached will be adhered to." In Howe v. Mittelberg, 96 Mo. App. 490, 70 S. W. 396, it is held that the clause of the limitation law (section 4272, supra), which provides that no action shall be barred under 10 years if it is founded on a writing for the payment of money or property, embraces any writing which expresses or implies a promise or agreement to pay money or property, whether the payment is to be certain or contingent. The bond required by statute (section 18, Rev. St. 1899 [Ann. St. 1906, p. 344]) of an administrator is conditioned that he shall faithfully administer said estate, account for, pay, and deliver all money and property of said estate, and perform all other things touching said administration required by law or the order or decree of any court having jurisdiction; and, while it is well settled that suit may be instituted upon such bond within 10 years after the cause of action thereon accrues, defendants contend that an attachment bond contains no conditions for the payment of money or property, and does not therefore come within the provisions of said section 4272, but rather the provisions of section 4273, supra.

The parties signing the attachment bond sued upon in this case acknowledge themselves to be indebted to the state of Missouri in the sum of $52,000, for the payment whereof they bind themselves, their executors and administrators; the obligation to be void (otherwise to remain in full force) if the "plaintiff shall prosecute its action without delay, and with effect, refund all sums of money that may be adjudged to be refunded, to the defendant, or found to have been received by the plaintiff, and not justly due to it, and pay all damages and costs that may accrue to any defendant or garnishee, by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment, or process thereon." It is true that in Meneffe v. Arnold, 51 Mo. 536, it was held that a receipt given by the defendant to a third party for money therein stated to have been received on account of money paid out by defendant as surety for the plaintiff, which receipt was afterwards assigned by the defendant to the plaintiff, was not such a promise to pay as would take the case out of the statute of limitations; but the paper sued on contained no promise of any kind, either express or implied. In Carr v. Thompson, 67 Mo. 472, the court said: "The circuit...