State v. O'Neill
| Decision Date | 06 November 1905 |
| Parties | STATE OF MISSOURI to the use etc., Respondents, v. JOHN P. O'NEILL et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Shannon C. Douglass, Judge.
AFFIRMED.
Judgment affirmed.
Edward C. Wright and Holmes & Page for appellants.
(1) Respondents' cause of action was barred by the statute of limitations. R. S. 1899, sec. 4274; Mitchell v Fullbright, 32 Mo. 551; Shaeffer v. Bernero, 11 Mo.App. 562; State ex rel. v. Lidwell, 11 Mo.App 567; State ex rel. v. Minor, 44 Mo. 373, 376. (2) The Augusta Mayer suit could not stop the statute of limitations from running against respondents' claim, and the court erred in admitting any evidence in relation to that suit. Sutton v. Dameron, 100 Mo. 141; Tiffin v Leabo, 52 Mo. 49; Henry v. Woods, 77 Mo. 277; Field v. Stubblefield, 85 Mo. 199; Updegrove v. Blum, 117 Pa. St. 259; Peterson v. Railroad, 190 Pa. St. 364; Wood v. Dill, 3 Kan.App. 484; Garrett v. Pierson, 29 Iowa 304; Gaines v. Hammond, 6 F. 529; Elder v. McClaskey, 70 F. 529; Seibert Co. v. William Co., 38 F. 600. (3) The plaintiff in this cause was not entitled to recover, regardless of limitations, because, (a) the statutes forbid. R. S. 1899, sec. 10035. (b) On the undisputed facts, the second bond only was liable. State ex rel. v. Minor, 44 Mo. 373; Draffen v. City, 8 Mo. 395; State ex rel. v. Smith, 26 Mo. 226; State ex rel. v. McCormick, 50 Mo. 568; State ex rel. v. Finn, 98 Mo. 532; State ex rel. v. Branch, 134 Mo. 592; State ex rel. v. Paul, 21 Mo. 51; Shaeffer v. Bernero, 11 Mo.App. 562; State ex rel. v. Lidwell, 11 Mo.App. 567; State ex rel. v. Finn, 23 Mo.App. 567; Bruce v. U.S. 17 How. 437; Miller v. Stewart, 9 Wheat. 681; Riddell v. School Dist., 15 Kan. 168; Leigh v. Evans, 64 Ark. 26; Doolittle v. Railroad, 20 Kan. 337; Commissioners v. McCormick, 4 Mont. 115. (4) The admissions of respondent in the pleadings in the suits against O'Neill's second bond were admissible, and, when uncontradicted, conclusive against plaintiff's recovery. Douzelot v. Rawlings, 58 Mo. 75; Fry v. Estes, 52 Mo.App. 1; Snyder v. Railroad, 112 Mo. 527; Nichols v. Jones, 32 Mo.App. 657.
Wollman & Solomon for respondents.
(1) The statute of limitations does not begin to run against the sheriff's bond until the rights to the proceeds in his hands shall have been determined. State ex rel. Finn, 23 Mo.App. 290; State ex rel. v. Hickman, 150 Mo. 626; Soulard v. St. Louis, 40 Mo. 145; Rickards & Co. v. Beamis & Co. , 78 S.W. 241; Daugherty v. Moon, 59 Texas 399; McMahan v. Hall, 36 Texas 59; Platt v. Phillips, 37 Texas 9; Bank v. Finn, 98 Mo. 532, l. c. 540; Dany v. Field, 1 Abb. Dec. 490; Peck v. Hotchkiss, 52 How. Pr. 226. (2) Appellants also contend that on the undisputed facts, the second bond only was liable. (3) It is also contended by appellants that respondents have elected to hold O'Neill personally, and cannot maintain this action. Oberbeck v. Mayer, 59 Mo.App. 289; Crawford v. Word, 7 Ga. 445; Taylor v. Johnson, 17 Ga. 521; Graham v. Court, 39 Ky. (9 Dana) 182; Mullen v. Scott, 9 La. Ann. 173; Lowell v. Parker, 57 Mass. (10 Metc.) 309); 43 Am. Dec. 436; Tracy v. Goodwin, 87 Mass. (5 Allen) 409; Hursey v. Marty, 61 Minn. 430, 63 N.W. 1090; State v. Jennings, 14 Ohio St. 73.
On January 26, 1894, the plaintiff, Blacker, Gerstle & Company, brought an attachment suit in the circuit court of Jackson county against Charles Johns. The writ was issued and placed in the hands of the defendant O'Neill, who was then sheriff, and certain goods were seized thereunder as the property of Johns. On February 14th, following, the goods were sold by the sheriff pursuant to an order of court and $ 1,149.46 were realized from the sale. These proceeds have ever since remained with O'Neill, and at some time, just when is not shown, were converted by him to his own use. He made due report of the sale at the April, 1894, term of court. On April 13, 1894, plaintiffs recovered judgment by default against Johns in the sum of $ 989.25. The attachment also was sustained and no appeal was taken from this judgment.
On March 6, 1894, an action was begun in the circuit court of Jackson county by Augusta Mayer against O'Neill and his bondsmen upon his official bond to recover damages on account of the alleged conversion of the property attached. Plaintiff in that suit claimed title to the goods attached under a chattel mortgage executed by Johns to secure a debt of $ 4,270 and interest. The lien of this mortgage was asserted to be prior and superior to the attachment lien. Issues were joined and a trial was had in February, 1896, resulting in the taking by plaintiff of a compulsory nonsuit. An appeal was prosecuted by her to the Supreme Court and the judgment was affirmed. The mandate of affirmance was filed in the circuit court on July 14, 1899. At the January, 1901, term of the circuit court plaintiff filed a motion for an order upon O'Neill to pay into court the proceeds of the attached property. The motion was sustained March 30, 1901, and the order was made and service thereon acknowledged by O'Neill, but the proceeds were not paid into court as directed.
The suit before us was brought by plaintiff in the circuit court of Jackson county on August 7, 1901, against O'Neill and his bondsmen upon his official bond in force at the time of the sale of the attached property. The object of the suit, as disclosed by the averments in the petition, is to recover judgment for the funds converted to the extent of plaintiffs' interest therein. The defenses interposed in the answer are, first, a general denial, second, a plea of limitation, and third, the pendency of another suit brought by plaintiffs against O'Neill and his sureties upon another and later official bond. The reply filed put in issue the affirmative defenses and in addition pleaded the proceedings in the Mayer suit to prevent the running of limitations. Plaintiffs recovered judgment and defendants appealed.
In addition to those recited, the following facts appear from the evidence: O'Neill was elected sheriff at the November, 1892, election and filed his bond (the one in suit) November 28, 1892. He was inducted in office January first, following. All of the official acts performed by him in relation to plaintiffs' attachment suit occurred during this term of office. At the November, 1894, election (November 6th) he was re-elected sheriff for another term and on December 29th, following, filed a new bond with other sureties than those upon the one in suit. After serving through the second term he retired from office. No order of court touching the disposition of the proceeds of the attached property was applied for or made during his incumbency nor thereafter, except the one mentioned. He was not called upon to account for the fund until after the determination of the Mayer suit in the Supreme Court, although no appeal bond was filed in that action. It was shown by defendants that during the year 1894 O'Neill, as sheriff, kept an account with a bank in Kansas City and had on December 1, 1894, $ 7,866.65 to his credit, and on December 31, $ 3,062.13, but it is not shown, although O'Neill himself was called as a witness, that the fund in question was incorporated in that deposit nor that any part of the deposit was applicable to its liquidation, had he then been called upon to account for it. Defendants also introduced in evidence a petition filed in the circuit court of Jackson county on July 18, 1901, in an action brought by plaintiff against O'Neill and his sureties upon his second bond, wherein the cause of action pleaded is the same as that in the present suit.
One of the contested issues relates to the effect of an interplea filed by another creditor of Johns in plaintiffs' attachment suit but under the views entertained by us it is not necessary to the proper determination of this controversy to go into that issue.
There is no conflict in the evidence. There are some differences between the parties relative to the inferences to be drawn therefrom, which will be noted during the progress of the ensuing discussion. The case was tried by the court, a jury being waived. No declarations of law were asked by either party, and a reversal of the judgment is sought on the ground that the uncontradicted facts preclude a recovery by plaintiffs.
Defendants urge that under Revised Statutes 1899, section 4274, the cause is barred by limitations as more than three years elapsed from the date of the recovery of judgment in the attachment suit (April 13, 1894) to that of the bringing of this action (August 7, 1901), while plaintiffs say that the pendency of the Mayer suit tolled the statute so that its operation did not begin before the filing of the mandate (July 14, 1899). In answer to this, defendants argue, first, that the Mayer suit asserted no claim upon the fund in the sheriff's custody and therefore did not involve the thing pursued by plaintiffs from which premise it must logically follow that plaintiffs when they recovered judgment had the right to demand and receive from the sheriff, out of the fund in his hands, an amount sufficient to satisfy their claim, regardless of the fact that this fund arose from the same property to which Mayer was asserting paramount title in her suit against the sheriff and his sureties; and, second, that as Mayer did not give an appeal bond, the statute at all events began to run on the date of the judgment against her in the circuit court (February 19, 1896).
Regarding the first of these contentions, it must be conceded that Mayer in her suit was not attempting to reach the proceeds of the attached property, but was endeavoring to recover damages for the...
To continue reading
Request your trial