State v. Harrison

• Decision Date: 17 February 1903
• Citation: 99 Mo. App. 57,72 S.W. 469
• Parties: STATE ex rel. LIVESAY et al. v. HARRISON et al.
• Court: Missouri Court of Appeals

72 S.W. 469

99 Mo. App. 57

STATE ex rel. LIVESAY et al. v. HARRISON et al.

Court of Appeals at St. Louis, Missouri.

February 17, 1903.

COUNTY COURT CLERK — SALE OF FORGED WARRANT — ASSIGNMENT — LIABILITY OF BONDSMEN TO ASSIGNEE.

1. The act of a county court clerk in selling at a discount a warrant forged by him is not an exercise of official duty, or a transaction in which he acts under color of his office, so as to render his bondsmen liable to the purchaser under a condition in the bond that the clerk shall faithfully perform the duties of his office.

2. Where a county court clerk, having forged a warrant, sells the same to a purchaser, executing an assignment in the purchaser's presence, consisting of an indorsement of the name of the payee by him, the purchaser acquires no rights enabling him to maintain suit on the clerk's bond, the assignment not being in statutory form, and ineffectual to convey title.

Appeal from circuit court, Phelps county; Leigh B. Woodside, Judge.

Action by the state of Missouri, on the relation and to the use of J. S. Livesay and others, against J. P. Harrison and others. Judgment for defendants, and relators appeal. Affirmed.

T. M. & C. H. Jones, for appellants. L. F. Parker, for respondents.

REYBURN, J.

This is an action upon the official bond of John P. Harrison as clerk of the county court of Phelps county, of date November 24, 1894, executed to the state of Missouri, as obligee, by John P. Harrison, as principal, and his codefendants John P. Kaine, Joseph Campbell, and B. L. Knapp, as sureties, in the sum of $6,000, and conditioned as follows: "The condition of the above bond is such, however, that whereas, the said John P. Harrison was on the 6th day of November, 1894, duly elected to the office of clerk of the county court of the county of Phelps, in the state of Missouri, and has been duly commissioned: Now, therefore, if the said John P. Harrison shall faithfully perform the duties of his office, and pay over all money which may come into his hands by virtue of his office, and shall himself or by his executors or administrators deliver to his successors safe and undefaced all the books, records, papers, seals, apparatus, and furniture belonging to such office, then this obligation shall be void; otherwise to remain in full force and effect." The breach assigned sets forth: That defendant Harrison, as such clerk of the county court of Phelps county, Mo., while acting as such clerk, under color and by virtue of his office, on November 2, 1897, unlawfully and wrongfully issued, forged, and falsely made a false and forged county warrant No. 138, purporting to be drawn on the pauper fund of Phelps county, Mo., by order of the county court of said Phelps county, for $444.45, to which false and forged county warrant Harrison attached his official signature as clerk of such court, thereby pretending to attest as genuine the false and forged signature of John Wolfe, presiding judge of such court, to the warrant, which signature of such judge Harrison did forge to the warrant; and that he wrongfully attached the seal of such county court to the warrant, and afterwards, as such clerk, presented it to the county treasurer, and had it registered and attested; and thereafter, as such clerk of the county court of Phelps county, he uttered and published the warrant, and offered it to plaintiffs as a true, valid, and genuine county warrant, for sale, and plaintiffs, relying upon the fact that the official seal of the county court was attached thereto, and that it bore the official signature of Harrison as clerk of the county court, pretending to attest the validity and genuineness of the warrant, and that the defendant Harrison, as clerk of such court had presented and had the warrant duly registered with the county treasurer, and the warrant being in the hands of Harrison as clerk of the county court of Phelps county, and relying upon the official representations of Harrison as such clerk that the warrant was valid and genuine, the plaintiffs purchased it from Harrison, and paid him $444.45 therefor. That by reason of such warrant having been falsely made, forged, sealed, and attested by Harrison, the clerk of the county court of Phelps county, it was worthless, and constituted no liability against Phelps county whatever; and that by such forgery of the warrant by the county clerk plaintiffs lost the sum paid therefor, and have been damaged by such unfaithful acts of Harrison, county clerk, in the amount named. The answer of the sureties (no service having been had on the principal Harrison) admitted the execution of the bond, and its approval by order of the county court, but denied all other allegations of the petition. The answer further pleaded in bar that another...