State v. Chick

• Citation: 48 S.W. 829,146 Mo. 645
• Parties: STATE ex rel. JACKSON COUNTY v. CHICK et al.
• Decision Date: 13 December 1898
• Court: United States State Supreme Court of Missouri

48 S.W. 829

146 Mo. 645

STATE ex rel. JACKSON COUNTY v. CHICK et al.

Supreme Court of Missouri.

December 13, 1898.

CLERKS OF COURT — FALSE REPORT — LIABILITY — WITNESSES — EXAMINATION — OFFICIAL BONDS — ALTERATION — RATIFICATION — TRIAL — INSTRUCTIONS — BURDEN OF PROOF — APPEAL — FAILURE TO OBJECT.

1. A failure of the county court to order a clerk of court to pay to the county excess fees coming to it, as ascertained from his quarterly report, and to direct a suit on his bond for disobedience of such an order, as required by Rev. St. 1889, §§ 5009, 5011, does not preclude an action on his bond, where his report is false.

2. Where a witness testified that defendants admitted signing the bond sued on, he may be asked, on cross-examination, if they did not state, when they made such admission, that the bond had been altered after they had signed it.

3. On a question as to whether an official bond was altered after it was signed, a county judge, in answer to an inquiry by plaintiff, testified that he did not know when the bond was approved, but that it had been altered. In answer to an inquiry by defendant, he testified that he approved the bond on a certain day, and that he had an impression that it was for a less sum than when originally brought to him. Held a question for the jury as to the weight and credit to be given to the testimony.

4. It is not incumbent on a court to single out each witness by name, and charge whether his testimony tended to prove any particular fact in controversy.

5. Where the defense to an action on an official bond is non est factum, and it is manifest from an inspection of the bond that the amount of the penalty has been altered, the burden is on plaintiff to show that the alteration was made before the bond was signed.

6. The alteration of an official bond, decreasing the amount of the penalty after it is signed, without the obligors' consent, will relieve them from liability.

7. Where defendants obtained leave to plead non est factum 10 months after the action on an official bond was commenced, a refusal to charge that defendants should, in the regular course of pleading, have filed their answer sooner, is proper, as the charge does not indicate how such fact should affect the verdict.

8. Where the sureties, in an action on an official bond, pleaded non est factum and settlement made with their principal, their act of filing a motion requiring plaintiff to make the principal a party is not such a recognition of the bond as precludes them from thereafter denying its execution.

9. Proof that the obligors of an official bond read in a city newspaper that the bond was for a smaller sum than when they executed it, and that they made no protest, is not sufficient to show a ratification of the bond, so as to preclude them from evading liability on the ground that the amount of the bond had been altered by substituting such smaller sum.

10. Where a judgment had been rendered in favor of the obligors of an official bond that was approved by the county court, on the ground that it was altered after it was signed, the obligee cannot, on appeal, first object that the question whether the county court had notice of the alteration when the bond was approved should have been submitted to the jury.

Robinson, Brace, and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by the state on the relation of Jackson county, against J. S. Chick and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This is a suit upon the official bond of M. S. Burr, late clerk of the county court of Jackson county. The action was begun on the 11th of May, 1894, against the sureties only. The principal was not joined as a defendant. The petition contains twelve counts. It is alleged therein that the county of Jackson, at whose relation and to whose use the suit is prosecuted, was at all the times mentioned in the petition, and still is, an organized county of the state of Missouri; that Burr was elected clerk of the county court of said county on the 4th of November, 1890, for a term of four years; that he received his commission and duly qualified on the 2d of January, 1891; that on said day he and defendants, as his sureties, executed their bond to the state of Missouri in the penal sum of $5,000, conditioned for the faithful performance of the duties of his office. The bond is set out in hæc verba. It is then stated that said bond was approved by the county court, and on the 16th of February, 1891, was deposited with the secretary of state with the approval of said court indorsed thereon. Plaintiff further charges that Burr received in fees, during the first quarter of the year 1891, $9,661.62, and was allowed for expenses of deputies and assistants for said quarter $1,525. It is then assigned in the first count, as a breach of said bond, that said Burr only reported to the county court in his return of fees received by him during said first quarter of 1891 $8,899.80, and wholly failed to include in said quarterly statement $732.68 collected by him during that time for official services, and an itemized list of the sums so collected is then given; that he at no time thereafter made any report of said fees omitted from said return, and never accounted for or paid the same to the county. Plaintiff further charges that the county court approved said return of fees for that quarter without any knowledge or information that the sum of $732.68, above mentioned, had been received by Burr and not reported to it; and that he obtained the approval of said return by means of a false statement therein that it contained the total of all fees collected by him during said first quarter of 1891. Judgment is asked in this count for the penalty of the bond, and that execution issue for said sum of $732.68, with interest thereon. A similar breach, differing only as to amount, is assigned, in a separate count, for each of the remaining quarters of the year 1891, and for each quarter of 1892 and 1893, making twelve in all. There were three additional counts, but they were dismissed, and need not be further noticed. The answer was: First, a plea of non est factum. This is based upon an alleged unauthorized alteration in the penalty of the bond from ten to five thousand dollars. And, second, that the county court, with full knowledge that Burr had collected the fees sued for, and claimed the same as his own, made settlement with him and approved his reports, well knowing that said fees were not included in the same because of his claim thereto. The replication denied the new matter in the answer, and alleged that, if there were any alterations in the bond, the same had been subsequently ratified by defendants. The parties offered evidence in support of their respective theories. The jury returned a verdict for defendants, and, after an unsuccessful motion for a new trial, plaintiff has appealed. The errors assigned by plaintiff require an examination of the rulings of the court in the admission of evidence, and in passing upon the instructions asked by the parties. Any further facts necessary to a proper understanding of the points decided will appear in the opinion.

R. H. Field and James A. Reed, for appellant. Witten & Hughes, Lipscomb & Rust, and Warner, Dean, Gibson & McLeod, for respondents.

WILLIAMS, J. (after stating the facts).

1. Defendants make the point, which should first be disposed of, that the petition fails to state a cause of action, and that the judgment must therefore be affirmed, regardless of the alleged errors complained of by plaintiff below (appellant here). There is no allegation in the petition that the county court, after the examination of the clerk's return of fees collected by him, and the allowance of such sums as he was entitled to retain under the statute, for clerk hire and for his salary and other expenses, made an order, as provided by Rev. St. 1889, § 5009, requiring him to pay the money sued for into the county treasury, or that there was at any time an order made directing him to pay this money to the county; nor is there any statement in the petition, that, upon his failure to make payment within 15 days after being ordered so to do, the county court, in accordance with section 5011 of the statute, directed this suit to be brought. It is claimed that such proceedings in the county court constitute a condition precedent to plaintiff's right to maintain this action, and plaintiff must allege performance thereof. State v. Dent, 121 Mo. 162, 25 S. W. 924, is cited in support of this contention. The clerk, in that case, made a correct report of the fees received by him, and there was no charge of any fraud, deceit, or failure to make a fair and proper return of his collections. No order was made upon him to pay over the excess in his hands, after deducting the statutory allowances. It was held, upon those facts, that plaintiff, in the absence of such order, could not recover. The petition in the case at bar proceeds upon an entirely different theory. The charge here is that the clerk wholly failed to report or account for the fees sued for, and that the county court was induced to approve his quarterly statements in ignorance of the fact that they had been collected, and in reliance upon the false statement that said reports contained the total fees received by him. It was the duty of the clerk to make true and correct quarterly returns of the fees collected. His failure to do so constituted a breach of his bond. The unreported fees remaining in his hands, after he had retained, from those included in his reports, the amounts to which he was entitled under the statute, were held by him to the use of the county. The allegation is that the county court had no knowledge or information of these collections. The clerk and his sureties cannot, after his failure to make mention of them in his quarterly returns, escape...