State v. McGonigle
| Decision Date | 19 May 1890 |
| Parties | The State, Appellant, v. McGonigle et al. [*] |
| Court | Missouri Supreme Court |
Appeal from Knox Circuit Court. -- Hon. B. E. Turner, Judge.
Affirmed.
L. F Cottey for appellant.
(1) The record of the county court approving the bond is the only evidence of the fact and of what was done by the county court touching said bond. Medlin v. Platte County, 8 Mo 235; Milan v. Pemberton, 12 Mo. 599; Dennison v County, 33 Mo. 168; Reppy v. Jefferson County, 47 Mo. 66; Maupin v. County, 67 Mo. 327; Mobley v. Nave, 67 Mo. 546; Johnson County v. Wood, 84 Mo. 515; Bank v. Hoeber, 8 Mo.App. 171; Riley v. Pettis County, 96 Mo. 318. (2) Taking Dailing's name off the bond was a case of spoliation and not of alteration. Medlin v. Platte County, 8 Mo. 235; State v. Berg, 50 Ind. 496; Hill v. Calvert, 1 Richards (S. C.) 56; 2 Humph. (Tenn.) 242. (3) A bond is valid if delivered to the proper court or officer, although it may not be marked filed, and although there may not be any record of its approval. After it has been thus delivered, it is entirely out of the power of any one to release the bondsmen, by merely erasing their names therefrom. This proposition is clearly affirmed in the following cases: Jones v. State, 7 Mo. 82; James v. Dixon, 21 Mo. 538; State v. Farmer, 54 Mo. 439; Graves v. McHugh, 58 Mo. 500; Brown v. Weatherby, 71 Mo. 152; State v. Richardson, 29 Mo.App. 595. (4) County courts are creatures of the statute, with no powers except what are granted, defined and limited by law, and every person who deals with the county court is bound to know the law that confers the authority. When Reid presented his bond, the court could only approve or reject it. They had no authority to release a solvent surety, as they say Dailing was. If the county court exceeds its special and limited authority conferred by statute, in such case the county will not be bound by the unauthorized act of the court. Walcott v. Lawrence County, 26 Mo. 275; State ex rel. v. Clark County, 41 Mo. 49; State v. Bank, 45 Mo. 538; Steins v. Franklin County, 48 Mo. 177; State ex rel. v. Hays, 52 Mo. 579; Wood v. Williams, 61 Mo. 63; Saline County v. Wilson, 61 Mo. 239. (5) In the case of a note, the consideration passes at the time of the delivery, and cannot afterward be changed, while a bond has a continuing consideration and exists in full force as long as the principal remains in office. An official bond is binding on all who sign it. United States v. Lynn, 15 Pet. 290; Wood v. Williams, 61 Mo. 63; Hockaday v. Woods, 84 Mo. 163; State v. Powell, 57 Mo. 395; LaFayette County v. O'Gorman, 75 Mo. 370; Rubelman v. Greve, 18 Mo.App. 6. (6) The facts in this case create an estoppel against the defendants. They had notice of the record of the approval of the bond by the county court August 4, 1885, and knew that Reid was holding the office by virtue of their suretyship for him. "He who did not speak when he should have spoken shall not be heard, now that he should be silent." State v. Potter, 63 Mo. 212; McKown v. Williams, 77 Mo. 463; Lionberger v. Krieger, 88 Mo. 160; Wright v. Lang, 66 Ala. 389; Burns v. Campbell, 71 Ala. 271; Herring v. Skaggs, 73 Ala. 446; Evans v. Dougherty, 84 Ala. 68; Crown v. Commonwealth, 4 S.E. (Va.) 721; Middleton v. State, 22 N.E. 123; Dair v. United States, 16 Wall. 1; Bigelow on Estoppel [3 Ed.] 454, and cases there cited; Butler v. United States, 21 Wall. 272.
O. D. Jones, also, for appellant.
(1) The answers do not state facts to constitute a defense. They do not state the court had notice of the agreements. They do not state when, by whom or the intent with which Dailing's name was erased. If an alteration is relied on this must be done. Mathews v. Coalter, 9 Mo. 705-10; McCormick v. Fitzmorris, 39 Mo. 24-33; Paramore v. Lindsay, 63 Mo. 63-5; Holten v. Kemp, 81 Mo. 661-5; Lawson on Presumptive Evidence, ch. 17, p. 381, rule 84. "Alterations, erasures and interlineations appearing on the face of writings, whether under seal or not, are presumed to have been made before their execution or completion." (2) In State v. Potter, 63 Mo. 212, this court established a doctrine in line with reason and authority. It is there held the "secret agreement" between the principal and security, who signed on conditions, cannot affect the grantee. In State v. Baker, 64 Mo. 167, the court followed in a case of forgery of the name of security. State v. Modrel, 69 Mo. 152; State v. Hewitt, 72 Mo. 604; Wolf v. Shafer, 74 Mo. 155. The theory on which the case was tried, and the finding made in the lower court, was that of a material alteration made before delivery of the bond, and it puts the case and answers all clearly in the rule of State v. Potter, 63 Mo. 212, and Mathews v. Coalter, 9 Mo. 705. (3) It is admitted the bond was delivered, in fact, accepted by the agents of the county in an official way. Can it be shown that at another time when not acting officially they did acts and were infected with notice which nullifies all officially done? The record shows affirmatively that, what the members of the county court did in regard to the erasure of Dailing's name, they did as individuals. It was no notice to them in an official capacity, and does not infect them with notice as agents of the state. They are the most special of special agents; "their power must be strictly construed." Johnson County v. Wood, 84 Mo. 489; Maupin v. Franklin County, 67 Mo. 331; Saline County v. Wilson, 61 Mo. 239; Medlin v. Platte County, 8 Mo. 235-8.
G. R. Balthrope for respondents McPike and McGonigle.
(1) It was the duty of the county court to see that Reid gave bond before entering upon the duties of his office. R. S. 1879, secs. 6733, 6735, 6738. (2) The evidence clearly and emphatically shows a material alteration and change made in the obligations and responsibilities resting upon these respondents by virtue of the bond, and that the bond by reason of said alteration and changes so made in the light of the following decisions is certainly void as to these respondents. Martin v. Thomas, 24 How. 315; Smith v. United States, 2 Wall. 219; State v. Craig, 58 Iowa 238; State v. Churchill, 3 S.W. (Ark.) 352; Osburn v. Von Hunter, 8 N.W. (Mich.) 77; Brackin County v. Drum, 80 Ky. 388. (3) If the bond had been delivered and approved before the erasure of Dailing's name then no one would be discharged, not even Dailing. In such case it would have been spoliation and not alteration. Platte County v. Medlin, 8 Mo. 232. The bond was not delivered until Reid agreed to pass it from his possession and control, and until the county court agreed to receive it from his possession. Murfree on Official Bonds, sec. 14. (4) The acts and knowledge of the county court are imputable to the state. Hord v. Taubman, 79 Mo. 101. (5) The payment to Reid by defendant's securities of the taxes due the state and county by them after alteration of the bond is not a ratification of such alteration, and the doctrine of estoppel will not apply for at the time of such payments they knew nothing of such alterations having been made. Fredrick v. Railroad, 82 Mo. 402; Burk v. Adams, 80 Mo. 504; Railroad v. Howard F. B. Co., 85 Mo. 307.
Blair & Marchand for respondents.
(1) Erasures of names from, and alterations of, notes and official bonds, with or without notice to payee, obligee or agent, will release other sureties thereto. O'Neal v. Long, 4 Cranch, 60; Martin v. Thomas, 24 How. 315; Smith v. United States, 2 Wall. 219-26; Medlin v. Platte County, 8 Mo. 235; Haskell v. Champion, 30 Mo. 136; Trigg v. Taylor, 27 Mo. 245; Robinson v. Berryman, 22 Mo.App. 509-12; State v. Churchill, 3 S.W. (Ark.) 352; State v. Craig, 58 Iowa 238. The case of State v. Churchill, above, is directly in point. The case of Robinson v. Berryman, above, also, has an important bearing on the case. (2) The law in regard to erasing names from and making alterations in instruments and official bonds applies to individuals, counties, states and government of the United States alike. Ayres v. Milroy, 53 Mo. 516; State to use v. Potter, 63 Mo. 212-18. (3) There is no place for the doctrine of spoliation in this case as the name was erased before the bond was approved or accepted. Brown v. Weatherby, 71 Mo. 152; Bensley v. Haeberle, 20 Mo.App. 648; 12 Wheat. 64; 14 Mass. 167. (4) The doctrine that laches is not imputable to the state cannot be invoked in this case because the state has fully protected itself by the bond taken by it from the state auditor (R. S. 1879, secs. 7553-4), and of this law this court will take judicial notice. State v. Case, 53 Mo. 246; State v. Gates, 67 Mo. 139; O'Brien v. Railroad, 21 Mo.App. 12. (5) The loss was occasioned by the negligence of Walker and the insolvency of Reid, and the sureties are discharged. People v. Janson, 7 Johns. 332; State v. Roberts, 68 Mo. 234; Dox v. Post, 1 Pet. 318. (6) Injunction and mandamus will lie against public officers of the states and United States possessing ministerial duties exclusively. Marbury v. Madison, 1 Cr. 137; Kendall v. Stockton, 12 Pet. 527; State v. Johnson, 4 Wall. 475; Ratterman v. Tel. Co., 127 U.S. 411; People v. Canal, 55 N.Y. 390; State v. Secretary of State, 33 Mo. 293; Francis v. Blair, 89 Mo. 291; Neiser v. Thomas, 12 S.W. 725. (7) Injunction will lie to restrain and prevent the collection of illegal and void taxes and process issued to enforce void judgments. Railroad v. Apperson, 97 Mo. 300; Valle v. Zeigler, 84 Mo. 214; Ewing v. Board, 72 Mo. 436.
OPINION
-- The state, as plaintiff, brought this suit against the sureties on the official bond of Peter J. Reid, who was elected collector of Knox county in November, 1884. Reid seems to have paid over the county...
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