State v. Finn

• Decision Date: 28 June 1889
• Citation: 98 Mo. 532,11 S.W. 994
• Parties: STATE <I>ex rel.</I> CHATHAM NAT. BANK v. FINN <I>et al.</I>
• Court: Missouri Supreme Court

11 S.W. 994

98 Mo. 532

STATE ex rel. CHATHAM NAT. BANK v. FINN et al.

Supreme Court of Missouri.

June 28, 1889.

OFFICIAL BONDS — LIMITATION OF ACTIONS.

1. During a sheriff's term of office a new official bond was given, reciting that "whereas, the said John Finn was on the 5th day of November, 1878, duly and regularly elected sheriff; * * * and whereas, by order of the circuit court, made on the 29th day of November, 1879, the said John Finn was ordered to give a new bond in lieu of the bond approved on Nov. 21, 1878: now, therefore, * * * if the said John Finn shall well and faithfully in all things discharge the duties of the office of sheriff * * * during his continuance in said office, then the above obligation to be void," etc. Held, that the new sureties were liable as from the beginning of the term.

2. The statute of limitations does not begin to run against an attachment creditor's claim to the proceeds of attachment in the hands of the sheriff, from the date of an order made before the determination of the attachment suit, and consequently before the creditor's right has become absolute directing the sheriff to pay such proceeds to the clerk of court.

3. Payments by the sheriff's sureties, during the statutory period, of portions of the creditor's claim against the sheriff for the proceeds of attachment, are a waiver of the bar of the statute.

Appeal from St. Louis circuit court; WILLIAM H. HORNER, Judge.

E. T. Farish and Valle Reyburn, for appellants. B. D. Lee and G. M. Stewart, for respondent.

RAY, C. J.

This is an action begun on May 9, 1884, against John Finn and sureties on his official bond as sheriff of the city of St. Louis. The official bond was executed and approved December 27, 1879, and the condition of said obligation is that "whereas, the said John Finn was, on the fifth (5th) day of November, 1878, duly and regularly elected sheriff of the city of St. Louis, and was duly commissioned; and whereas, by order of the circuit court made on the 29th day of November, 1879, said John Finn was ordered to give a new bond in lieu of the bond approved on November 21st, 1878: now, therefore, the condition of the above obligation is such that, if the said John Finn shall well and faithfully in all things discharge the duties of the office of the sheriff of the said city of St. Louis during his continuance in the said office, then the above obligation to be void, otherwise to remain in full force and effect." The special necessity for this second bond is not disclosed by the record, but it is fair to presume that, for some reason apparent to the court, the original bond was deemed insufficient. See sections 594, 3881, 3882, and 3892 of the Revision of 1879. The breach of the bond alleged in the petition is a failure of Finn, after his election as sheriff at the general election in 1878, to pay over the proceeds of property sold by him under a certain attachment issued and received on 26th day of May, 1879, in a certain cause entitled the "Chatham National Bank, plaintiff, vs. Meyer Goldsoll, defendant." The net balance, after deducting fees, costs, and payments made on the amount originally collected, was $1,985.69, for which sum plaintiff had judgment. The sureties interpose two defenses to the action: First. That, at the time they executed the said bond as sureties of the said Finn, he did not have on hand the said money or proceeds of sale received by him under the said attachment proceeding. Second. A plea of the three years' statute of limitations, in effect, that in June, 1879, said Finn made his sheriff's return of the order of sale in said attachment suit, and in November, 1880, his term of office as sheriff expired, and that on December 7, 1880, by consent of said plaintiff, an order was made on said Finn, to pay the proceeds of the sale, less his legal fees, etc., to the clerk of the circuit court, and that a demand was thereby made on said Finn, by the said plaintiff and defendant in said attachment suit, for the said proceeds, and that the present cause of action then accrued, and that the present suit was not brought in three years thereafter. On the other hand, the claim and contention on the part of the plaintiff is that, under the bond sued on, defendants are liable for defaults of the sheriff during the entire term of office, and, further, that the statute of limitations did not begin to run before May 16, 1881, at which date the prior order of December 7, 1880, to pay said proceeds of the said sale to the clerk was set aside, and the further order then made by the court, that the net proceeds of the sale in said attachment suit, then in the hands of the said Finn as sheriff, be paid over by him to the plaintiff in said cause. And plaintiff further claims that the defendants have waived the statute of limitations, by part payments of the demand within the three years prior to the institution of the suit, to-wit, on July 9, 1880, July 20, 1881, and September 20, 1882.

As to the first of said defenses, there is testimony in defendant's behalf, on the part of the sheriff's book-keeper and cashier, that said Finn kept his accounts, and deposited all the money received by him as sheriff, in the Bank of Commerce, and that between May 5, 1879, and July 9, 1879, inclusive, said Finn received and deposited the sum of $35,142.95, and that during the same period he drew out by his checks on said bank the sum of $38,983.67, leaving a deficit, on said last-named day, of $3,840.72. Upon evidence to this effect, the defendant asked, and the court refused, an instruction to the jury to the effect that, if they believed from the evidence that after the money sued for was collected by Finn, as sheriff, in May or June, 1879, he converted the same to his own use as early as August, 1879, and did not thereafter, in December, 1879, when the bond sued on was given, have said money on hand, then the defendant's sureties are not liable therefor. The general rule is that such sureties are only liable for breaches occurring after the execution of such bonds, and are not liable for prior defaults, unless made so by the terms of the bond. State v. Jones, 89 Mo. 480, 1 S. W. Rep. 355, and cases cited. The bonds in question are given, it will be observed, under one and the same appointment, and the recital of the bond is that it is a new bond given, by order of the court, in lieu of the first bond approved November 21, 1878. These terms and recitals of the second bond are such as to give it a retrospective operation, as was held by the St. Louis court of appeals in the recent case of State v. Finn, 23 Mo. App. 293, which was a suit on this same bond, and in which the court, speaking through ROMBAUER, J., use this language: "The defendant sureties contend that they became * * * responsible only for such defaults of their principal as occurred...