State v. Harris

• Decision Date: 30 November 1910
• Citation: 231 Mo. 294,132 S.W. 677
• Parties: STATE ex rel. BELL v. HARRIS et al.
• Court: Missouri Supreme Court

132 S.W. 677

231 Mo. 294

STATE ex rel. BELL v. HARRIS et al.

Supreme Court of Missouri. Division No. 1.

November 30, 1910.

COURTS (§ 231)—APPELLATE JURISDICTION— AMOUNT IN CONTROVERSY.

In an action on an official bond, in which under the practice as defined by Rev. St. 1909, §§ 1213, 1236, 1239, 1240, judgment is taken for the entire penal sum, with assessment of damages and award of execution for the actual defalcation, the amount in controversy for the purpose of the appellate jurisdiction of the Supreme Court is the amount of the defalcation as alleged in the petition, and not the penal sum of the bond.

Appeal from Circuit Court, Callaway County; Alex. H. Waller, Judge.

Action by the State, on the relation of J. P. Bell, Treasurer of State Hospital No. 1, against W. C. Harris and others. There was a judgment for plaintiff for partial relief, and it appeals. Transferred to Court of Appeals.

Elliott W. Major, Atty. Gen. (North T. Gentry, of counsel), for appellant. Harris & Hay and W. M. Williams, for respondents.

LAMM, P. J.

This is one of three suits instituted in Callaway circuit court on August 5, 1905, severally, on each of three bonds of William D. Thomas, treasurer of State Hospital No. 1 at Fulton, to recover the amounts of sundry defalcations running through a series of years, beginning with the year 1897 and ending in 1903, so far as disclosed to us. Two of the cases (State ex rel. v. Yates et al., 132 S. W. 672, and State ex rel. v. Grant et al., 132 S. W. 676) have been determined here in opinions just handed down. The present suit is brought by the state, to the use of John P. Bell, treasurer of the hospital, against W. C. Harris et al., sureties on Thomas' bond for a term of two years commencing March 12, 1901, and ending March 12, 1903, in the penal sum of $30,000, conditioned the same as the bonds in the other suits. But there is this difference, vis., the amount unlawfully converted by Thomas to his own use is alleged to be $6,901.68, so that judgment of forfeiture in the penal sum, $30,000, is prayed with award of execution for $6,901.68 as damages. The same defenses were interposed in this suit as in the others. The same steps were taken in appointing a referee, a hearing before him, a report of findings of fact and conclusions of law, in exceptions and rulings below, with this difference: In this case the referee found that of the sum converted all but $32.50 was received, and became payable more than three years before the institution of the suit, and that the statute of limitation was a bar except as to said amount. Judgment went in accordance with the report, and the state appealed.

At the outset, we are confronted with a question of jurisdiction, not raised by counsel. If the amount in dispute be the penal sum nominated in the bond, this court has jurisdiction. If it be the "shortage," this court has none. The question arises on the dual character of the judgment to be rendered in a suit on an official bond, such judgment going (secundum legem terræ) for a forfeiture of the bond in its entire penal sum, with assessment of damages and award of execution (not for the penal sum, but) for the quantum of damages so assessed. Rev. St. 1909, §§ 1213, 1236, 1239, 1240, and post; State v. Ruggles, 20 Mo. 99; State ex rel. Gates v. Fitzpatrick, 64 Mo. 185; State ex rel. v. Cooper, 79 Mo., loc. cit. 467.

There is language in State ex rel. v. Emmerling, 12 Mo. App. 98, and State ex rel. Yeatman v. Fox, 15 Mo., loc. cit. 73, which might indicate that the penalty of the bond determines jurisdiction. In the Fox Case, Judge Scott, whose fame is so justly great that his mere dicta are not unfrequently entitled to the force and use of holdings, said: "The opinion has generally prevailed in this state that the penalty of a bond determines the jurisdiction of the court." But he was there not dealing with the jurisdiction of an appellate court, hinging on the "amount in dispute," but with that of...